PLJ 1993 Judgments

PLJ 1993 FSC 1 PLJ 1993 FSC 1 [Appellate Jurisdiction] Present: MIR HAZAR KHAN KHOSO, J MUHAMMAD AKRAM-Appellant versus THE STATE-Respondent Criminal Appeal No. 155/1 of 1992, accepted on 27.10.1992. Benefit of Doubt- —Offence under Section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979-Conviclion for-Challcnge to--Opinion of Police officer is neither relevant nor dmissible regarding guilt or innocence of an accused person-Unfortunately State has not filed appeal against acquittal of coaccused, hence no action can be taken against him-When on same evidence of victim, co-accused has earned acquittal, her evidence against appellant also becomes very weak'and requires strong corroboration which lacks-Held: FIR does not implicate appellant for having committed rape and victim's evidence appears to be subsequent improvement—Benefit of doubt extended to appellant and appeal accepted. [P.4JA Malik Rab Nawaz Noon, Advocate for Appellant. Mr. Muhammad Aslam Lfns, Advocate for State. Date of hearing: 27.10.1992. judgment This appeal is directed against the judgment dated 30.5.1991 passed by tie learned Additional Sessions Judge, Layyah, whereby the appellant was convicted for offence under Section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to suffer R.I. for four years and to pay fine of Rs. 2,000/-, in default whereof to suffer S.I. for three months more. His co-accused Muhammad Hassan was acquitted of the charge. 2. The facts giving rise to this case are based on the complaint filed by Manzoor Hussain with S.I. Police Station Fatehpur on 9.3.1987 with the words as under:-- 3. On the strength of this complaint FIR No. 46 was registered at the Police Station. Appellant Muhammad Akram and his companion Muhammad Hassan were arrested. Victim Mst. Ramzan Bibi and the two culprits Muhammad Akram and Muhammad Hassan were sent for examination to hospital. Dr. Faizanur Rehman examined the appellant as well as his companion Muhammad Hassan, whereas Dr. Farzana Bukhari examined the victim. After usual investigation the appellant and his acquitted co-accused were sent for trial before the court. The case came (up) Tor trial before the learned Additional Sessions Judge, Layyah, where charge under section 10(3) of the Ordinance was levelled against the appellant -and his companion Muhammad Hassan. Both of them did not plead guilty to the charge. The prosecution, therefore, examined PW.l Manzoor Hussain, complainant, PW. 2 Mst. Ramzan Bibi, the victim, PW. 3 Dr. Faizanur Rehman, PW. 4, All Muhammad, Head-constable, PW. 5 Ghulam Akbar, Constable, PW. 6 Ghulam Murtaza, S.I., PW. 7 Muhammad Hussain and PW. 8 Dr. Farzana Bukhari. Manzoor Ahmad, retired DSP/investigating officer, has been examined as CW.l. 4. In their statements recorded under Section 342 O.P.C. the appellant and his associate have denied the allegation. Acquitted co-accused Muhammad Hassan took following stand in his 342 Cr.P.C. statement:- "There is property dispute between the father of the accused and father of alleged victim. Relations between the two families are very much strained. False case has been planted upon us in order to pressurise us to settle that property dispute. I am innocent. On the day of occurrence I was not present in the Chak and I was away to Fatehpur." DW. 1 Muhammad Sadiq and DW. 2 Ghulam Farid were examined in defence. However, the learned trial judge while extending benefit of doubt acquitted Muhammad Hassan and convicted the appellant for the offence as mentioned herein above. This appeal has been filed by the appellant against his aforesaid conviction and sentence before this Court. 5. Malik Rab Nawaz Noon, Advocate, appeared for the appellant and Mr. Muhammad Aslam Uns, Advocate, appeared for the State. 6. With the assistance of the learned counsel for the appellant I have gone through the FIR, statements of PW. 1 Manzoor Hussain, PW. 2 Mst. Ramzan Bibi and the judgment passed by the learned trial judge. It may be observed that in FIR PW. 1 Manzoor Hussain has not alleged that appellant Muhammad Akram had committed rape upon victim Mst. Ramzan Bibi. In clear words he has stated that Muhammad Hassan had committed rape upon her. Besides, in the latter part of the FIR Manzoor Hussain has stated that Mst. Ramzan Bibi had also narrated the facts regarding the incident to him. However, in his statement recorded before the court complainant Manzoor Hussain has stated that appellant Muhammad Akram had also committed rape upon Mst. Ramzan Bibi. In cross-examination the contradiction in the FIR and the statement of the witness has been brought on the record. Mst. Ramzan Bibi in her statement has clearly stated that at the asking of Hassan, Akram had committed zina with her. First chance was given to Muhammad Akrarn as he was quite young and it was easy for him to do the job. She has not said that on committing of zina with her by Muhammad Akram she had raised cries, but in unequivocal terms she has stated that on commission of zina by force by accused Hassan she started crying and weeping due to pain. Thus the injuries caused to her vagina could be only caused by rape of Muhammad Hassan but not by Muhammad Akram. However, during the trial Muhammad Hassan had taken the plea of alibi. His statement gets support from evidence of CW.l Manzoor Ahmad, retired DS/investigating officer, who had declared him innocent. The opinion of investigating officer though is neither relevant nor admissible while deciding criminal case, but yet his opinion was given weight by the learned trial judge and it was taken as a ground for acquittal of Muhammad Hassan. Besides, the alibi of the acquitted accused Muhammad Hassan was also based on the partly admission of complainant Manzoor Hussain sayiog that a earlier part of the day of the occurrence Hassan might be at Fatehpur. It would be beneficial to reproduce the findings given by the learned trial judge in respeti of the same, which read as under:- "According to the defence counsel accused have been roped in without any just cause and the lady fell prey at the hands of some other offender and due to previous grudge a case'was brought against the present accused. Complainant admitted during cross-examination that in earlier part of the day of occurrence accused Hassan might "be at Fatehpur. This was view of police officer, that Muhammad Hassan accused was away to Fatehpur at the time of occurrence and he was wrongly named as an accused person. After attending to entire evidence available on the He I am persuaded to grant benefit of doubt to Muhammad Hassan accused and acquit him of the charge." Indeed, in his further cross-examination witness Manzoor Hussain has clearly stated that at the time of occurrence Muhammad Hassan was present at the spot. As opinion of police officer is neither relevant nor admissible regarding guilt or innocence of an accused person, the court had to decide the case on the material produced before, it. It is unfortunate that the State has not filed appeal before this Court. Hence no action can be taken against acquitted accused Muhammad Hassan at this stage by this Court. Obviously, in the circu stances when on the same evidence of Mst. Ramzan Bibi, Muhammad Hassan has earned acquittal her evidence against appellant Muhammad Akram also becomes very weak and requires strong corroboration which lacks. The F.I.R. which had been recorded by the police at the instance of complainant Manzoor Hussain shows that the complainant had consulted victim Mst. Ramzan Bibi before registering the case. As F.I.R. does not implicate appellant Muhammad Akram for having committed rape upon Mst. Ramzan Bibi, his evidence appears to be subsequent improvement. In such view of the fact I am inclined to extend benefit of doubt in favour of appellant Muhammad Akram also. Consequently the appeal is accepted the conviction and sentences awarded to the appellant by the learned trial court on 30.5.1992 are set aside and he is acquitted of the charge. He is present on bail He is discharged from its obligation. (MBC) (Approved for reporting) Appeal accepted

PLJ1993FSC4 PLJ1993FSC4 [Appellate Jurisdiction] Present: FiDA muhammad khan and mir hazar khan khoso, JJ. TAHIR BASHIR-Appellant versus THE STATE-Respondent Criminal Appeal No. 214/L of 1992, dismissed on 28.10.1992. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)- — S. 11-Abduction with intention to commit Zwa--Offence of—Conviction for- Challenge to— There is positive evidence of Mst. Maryam Khurshid that appellant took her on pretext of giving her lift to her house but he detained her in a room and closed door from outside— She has further stated that he had obtained her signatures on some blank papers—PW. 4 has stated that he saw appellant taking abductee on day of occurrence-Appellant was serving as a driver with parents of abductee but his services were terminated one month prior to incident-Abductee has totally denied execution of any documents before a Magistrate—Detention of abductee is admitted by appellant through DW. 4~Held: Trial Court has dealt with evidence of prosecution witnesses and defence judiciously-Appeal dismissed. [Pp.8&9]A&B Mr. Muhammad Sharif Chohan, Advocate for Appellant. Ch. Muhammad Ibrahim, Advocate for State. Mr. Shafqat Melunood, Advocate for Complainant. Date of hearing: 22.10.1992. judgment Mir Hazar Khan Khoso, J.-This appeal is directed against the judgment dated 2.5.1992 passed by the learned Sessions Judge, Sheikhupura, whereby appellant Tahir Bashir was convicted for offence under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced to suffer imprisonment for life, twenty stripes and fine of Rs. 5,000/-, in default to undergo R.I. for six months more. By the same judgment his co-accused Muhammad Hanif was acquitted. 2. The case is based on the statement made by PW. 1 Yahya Khurshid on 24.4.1991. It reads as under:-- Statement of abductee Mst. Maryam Khurshid was recorded by police on 25.4.1991. On 30.4.1991 her statement under section 164 Cr.P.C. was also recorded by Magistrate First Class, Sheikhupura. The appellant and his coassociate Muhammad Hanif were arrested. However, there was no allegation that the abductee had been subjected to sexual intercourse. She was not thus referred to Medical Officer for examination. After usual investigation the appellant and his associate were sent up for trial for offence under Section 11 of the Ordinance before the Court. The case came (up) for trial before the court of the learned Sessions Juclge, Sheikhupura, whereby the appellant and his acquitted companion Muhammad Hanif did not plead guilty to the charge. Hence the prosecution in support of its case examined PW. 1 Yahya Khurshid, PW.2 Maryam Khurshid, PW. 3 Ata Muhammad Niazi, PW. 4 Abdul Sattar and PW. 5 Irshad Khan, ASI. 2. In his statement recorded under Section 342 Cr.P.C. the appellant in answer to question No. 14 stated:-- "As a matter of fact Mst. Maryam Khurshid entered into marriage with me against the will of her parents on 23.4.1991, according to her free consent which annoyed her parents and other relatives who falsely involved me in this case. I will make my detailed statement under Section 340 Cr.P.C." He took same stand in his statement recorded under section 340(2) Cr.P.C. It reads as under:-- "On 23.4.1991 at about zohar prayer time, my nikah with Mst. Maryam Khurshid was performed in presence of Shabbir Hussain and Muhammad Sharif by Hafiz Fazal Karim DW in the Bethak of Qari Muhammad Amin, adjacent to Eidgah Mosque for a consideration of dower of Rs. 10,000/- which was handed over to Mst. Maryam Khurshid in the shape of two folded bangles. The nikah was entered in the register of Nikah of ward No. 28, which was duly signed by myself, Mst. Maryam Khurshid, witnesses of the Nikah and Nikah Khawan etc. The nikah was performed with the free consent of Mst. Maryam Khurshid. One of the form of nikah was handed over to me and one to Mst. Maryam Khurshid. I had not abducted Mst. Maryam Khurshid, nor she was detained in any room, nor she was forced to sign any document. Mst. Maryam Khurshid is my legally wedded wife. I have filed a suit for restitution of conjugal rights, the certified copy of which is ExJDK. The said suit is fixed for 30.10.1991 in the court of Ch. Karamat Ali, Judge Family Court, Sheikhupura. I had taken the plea before the police that Mst. Maryam Khurshid was my legally wedded wife and so in this court. This case has been falsely registered against me as parents of Mst. Maryam Bibi were annoyed of this nikah. I had also (taken) the plea of my legally wedded wife in the bail application. I am innocent." Besides, the appellant examined DW. 1 Qari Muhammad Ameen, DW. 2 Hafiz Fazal Karim, DW. 3 Manzar Saeed, DW. 4 Shabbir Hussain and DW. 5 Masood Asghar Khan in defence. However, the learned Sessions Judge did not believe the defence version of appellant Tahir Bashir and convicted him for the offence under Section 11 of the Ordinance and sentenced him for the same as mentioned herein above. The learned Sessions Judge while extending benefit of doubt acquitted his companion Muhammad Hanif. Against the aforesaid conviction and sentence the appellant has filed this appeal. 3. We have heard Mr. Muhammad Sharif Chohan, Advocate, for the appellant, Mr. Shafqat Mehmood, Advocate, for the complainant and Ch. Muhammad Ibrahim, Advocate, for the State.' 4. At the very outset the learned counsel for the appellant submitted:-- (i) That the entire story advanced by the prosecution is absurd, full of contradictions and no reliance thus can be placed thereon. (ii), The prosecution has failed to prove the charge under Section 11 of the Ordinance against the appellant. In support of his contentions the learned counsel for the appellant relied on PLD 1970 SC 10,1969 SCMR 777, PLD 1953 FC 93, PLD 1958 SC 12, PLD 1967 SC 320, PLD 1977 SC 515 and PLD 1981 FSC 297. 5. The learned counsel for the complainant and the State while controverting the contentions raised by the learned counsel for the appellant submitted that charge under Section 11 of the Ordinance has been proved against the appellant. Hence his conviction and sentence recorded by the learned trial judge be maintained. Reliance was placed on PLD 1984 SC 95, 1983 SCMR 942, 1985 P.Cr.LJ. 110, PLD 1985 SC 357, 1986 SCMR 239, 1986 SCMR 132, 1988 SCMR 685, 1988 SCMR 2008, PLD 1989 SC 744, 1991 SCMR 753-1175, 1992 SCMR 1273 and 1991 P.Cr.LJ. 564. 6. With the assistance of the learned counsel for the parties we have gone through the evidence produced by the prosecution and the defence. It may be pertinent to observe that facts on the record establish that abductee Mst. Maryam Khurshid had disappeared from her house on 23.4.1991, thereafter she remained with appellant Tahir Bashir and returned to her house on 25.4.1991. It is case of the prosecution that on 23.4.1991 while abductee Mst. Maryam Khurshid after attending college was standing near the gate of college when at about 11.30 A.M. appellant Tahir Bashir alongwilh his acquitted co-accused Muhammad Hanif came there on pretext of giving her lift to her house took her to a house where he manipulated documents regarding Nikah. On that night he tried to have sexual intercourse with her but at the interference of a lady of the house could not succeed. The lady on the contrary facilitated escape of the abductee from the house. On the other hand, it is defence of appellant Tahir Bashir that on 23.4.1991 abductee Mst. Maryam Khurshid entered into marriage with him, but without consent of her parents. In such view of the fact we have to evaluate the evidence produced by the prosecution and the defence to arrive at a correct conclusion. During the course of arguments we had put two questions to the learned counsel for the appellant which he was not able to satisfactorily answer. The first question was, as to at what time and place Mst. Maryam Khurshid had come to the appellant and then, (ii) how she left the appellant's house? The learned counsel for the appellant merely insisted that the weakness of defence cannot strengthen the prosecution case. He tried to persuade us that we should not take into consideration the statement of the appellant and his defence witnesses, but we •should see as to whether the prosecution had proved the case under Section 11 of the Ordinance against the appellant. No doubt it is for the prosecution to establish its case beyond reasonable doubt. The weakness of the defence would in no case strengthen the prosecution case. However, in the instant case there is positive evidence of Mst. Maryam Khurshid stating that on 23.4.1991 at about 11.30 A.M. appellant Tahir Bashir on the pretext of giving her lift to her house took her and detained her in a room and closed the door from outside. She has further stated that on some blank papers he had obtained her signatures. It is further stated by her that he attempted to commit zina with her but on her resistance and at the interference of a woman in the house the appellant failed to achieve his object. She has further stated that in the next morning the same woman helped her to escape. The purpose of initially leaving her house at the relevant time is supported by PW. 1 Yahya Khurshid, her brother. Besides PW. 4 Abdul Sattar has stated that on that day he saw that appellant Tahir Bashir was taking Mst. Maryam Khurshid. Without haying any proper explanation from the appellant in respect of the same in his statements recorded under Sections 342 and 340(2) Cr.P.C. or rebuttal in respect of the same from any corner, we are satisfied to hold that on 23.4.1991 Mst. Maryam Khurshid was abducted by the appellant in order that she may be compelled to marry the appellant. The learned trial judge in para 37 of his judgment has observed as under:— "Counsel for the accused has tried to argue that the necessary ingredients of Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 have not been proved in this case, because the FIR does not find mention that Mst. Maryam Khurshid was being abducted by the accused for marriage or zina. This argument of learned counsel for the accused falls short of the view that it has been very clearly mentioned in the FIR Ex.PA that Mst. Maryam Khurshid was being abducted by the accused with an intention of committing zina with her. Even otherwise, I do not think that this plea is available to the accused in this case. Because it has been alleged by the accused in this case that he had arranged his marriage with Mst. Maryam Khurshid, though with her consent. This would show that the factum of marriage, irrespective of abduction is not disputed by the accused himself." 7. It is admitted position that appellant Tahir Bashir was serving as a driver with the parents of Mst. Maryam Khurshid. The appellant in his statement recorded under Section 340(2) Cr.P.C. has said that his services were terminated by his master one month prior to the incident. In his 340(2) Cr.P.C. statement he has said that in 1986 Mst. Maryam Khurshid was engaged with him and she had come to his residence at about 8.30 or 8.45 A.M. He has not given the date of her coming at all. In his statement under Section 340(2) Cr.P.C. the appellant has not said anything regarding filing of the complaint by Mst. Maryam Khurshid before a Magistrate or having got recorded her affidavit or statement under Section 164 Cr.P.C. before him. Mst. Maryam Khurshid has totally denied execution of such documents before a Magistrate. Had Mst. Maryam Khurshid gone with the appellant with free will and had married him, there was no reason on earth that she should have not allowed him to have marital obligation. Her refusal on that part establishes that the appellant had tried to perform Nikah or cohabit without her consent. He had tried to have sexual intercourse with her but he could not achieve the object on account of interference of the lady of the house. Detention of abductee Mst. Maryam Khurshid is admitted by the appellant through DW. 4 Shabbir Hussain. Besides, performance of Nikah by the defence witness DW. 3 Hafiz Fazal Karim was found to be fictitious by the learned trial judge. In the list of the witnesses filed by the appellant in a suit for restitution of conjugal rights some other names appear, but it does not carry the names of Qari Muhammad Ameen or Hafiz Fazal Karim. The learned trial judge, indeed, has dealt with the evidence of prosecution witnesses and the defence judiciously. To us also the evidence of defence witnesses appears to be fictitious and after thought. The learned trial judge has rightly discarded it. The two contentions raised by the learned counsel for the appellant thus fail. The authorities relied upon by him do not come to the rescue of the appellant. In such view of the facts we are inclined to dismiss the appeal. However, no request for reduction of sentence was made. We are thus inclined to maintain the same. However, we shall observe that the appellant is entitled to the benefit of Section 382-B Cr.P.C. which benefit has not been extended in his favour by the learned trial court. The appeal stands dismissed accordingly. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 FSC 10 [Original Jurisdiction] PLJ 1993 FSC 10 [Original Jurisdiction] Present: dr. FiDA muhammad khan, mir hatar khan khoso and nazir ahmad bhatti, JJ Dr. ABDUL MALIK IRFANI-Petitioner versus FEDERATION OF PAKISTAN, through SECRETARY, MINISTRY OF LAW AND JUSTICE, ISLAMABAD-Respondent Shariat Petition No.62/I of 1991, dismissed on 2.11.1992. Law Reports (Amendment) Act, 1989 (II of 1990)-- —S.6~Publication of judgments and orders-Restriction on-Challenge to-­ Main enactment which has offended petitioner admittedly is restriction on publication of judgments and orders passed by a Court or Tribunal, is Section 6 of Act which gives discretion to a Court or Tribunal to approve any judgment or order to be published or not--This section does not put any restriction on publication of laws but permits publication of orders/judgments which enunciate a principle of law or a question of law which is of first impression or distinguishes previous one, with permission of Court or Tribunal-Held: Undisputedly such determination could be better made by authority, Court or Tribunal which pronounces judgment or order-Petition dismissed. [Pp.l2&13]A,B&C Petitioner in Person. Nemo for Respondent. Date of hearing: 2.11.1992. judgment Mir Hazar Khan Khoso, J.-By this Shariat Petition under Article 203-D of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) petitioner, Dr. Abdul Malik Irfani, Editor " cJyG" £-'/ -«t»l " Islamabad has challenged Sections 5, 6, 7 and 8 of the Law Report Act, 1875 read with Law Report (Amendment) Act, 1989 (Act II of 1990) being repugnant to the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet (S.A.W.S). For ready reference the sections are reproduced as under:— "5. Certification by the Courts, etc.-A court or tribunal deciding a matter shall at the end of the judgment or order, as the case may be, certify in the form specified in the Schedule that it is based upon or enunciates a principle of law or decides a question of law which is of first impression or distinguishes, ovvr-rulcs, reverses or explains a previous decision. Explanation.-For the purpose of this Act, the expression "Court or tribunal" includes the Federal Shariat Court, a Service Tribunal, the Income Tax Appellate Tribunal and the National Industrial Relations Commission. 6. Restriction on the publication of judgments and orders.-- -No judgment or order of a court/tribunal shall be published or printed by any publisher, printer or any other person^ unless it is approved for reporting by a court or tribunal or is certified under Section 5. ' 7. Penalty~(V) Whoever contravenes the provisions of Section 6 shall be punished with fine which may extend to one lac rupees or in default of ayment of fine with simple imprisonment for a term which may extend to six months. (2) All copies of a publication in respect of which a person is convicted under sub-section (1) shall stand forfeited to the Provincial Government. 8. Jurisdiction to try offences.-No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by the Presiding Officer of the court or tribunal by which the judgment or order in respect of which the offence was committed was given or made, or by an officer generally or specially empowered by him in this behalf and no court other than a Court of session shall try any such offence." 2. In support of petition, the petitioner has relied upon following verses of the Holy Quran:- 3. Reliance was also placed on Articles 189 and 201 of the Constitution and case reported in PLD 1980 SC 160 and theory advanced by Mr. Frank in Book Modern Theories of Law. 4. It may be observed that on 13.10.1991 Mr. Khalid M. Ishaque, an eminent jurist, was present in the Court in connection with some other cases, agreed to act as amiciis-curiae to assist this Court and to submit written notes on the points involved in the petition. But he has neither sent any note nor had come for assistance. 5. Dr. Sajid-ur-Rahman Siddiqui, Research Advisor of this Court has placed on the file his research note and urged that Quranic verses and Ahadees of the Holy Prophet (SAWS) quoted by the petitioner were not relevant to the subject He has submitted that there were no clear and specific Injunctions of Islam either in the Holy Quran or hadith with regard to the subject. 6. The main enactment which has offended the petitioner admittedly is restriction on publication of judgments and orders passed by a Court or Tribunal, is Section 6 of the Act. In this section indeed a discretion has been given to a Court or a Tribunal to approve any judgment or order to be published or not. 7. In his research note Dr. Sajid-ur-Rahman Siddiqui, Research Adviser, while relying on two verses 59 and 65 of Sura Al-Nisa has canvassed that the sanctity of the Court and its' respect is pivotal concept in the Injunctions of Islam. The same are reproduced as under:-- O ye who believe' Obey God, and obey the Apostle, nd those charged With authority among you If ye differ in anything Among yourselves, refer it To God and His Apostle, If ye do believe in God And the Last Day; That is best, and most suitable For final determination. But no, by thy Lord, They can have No (real) Faith, Until they make thee judge In all disputes between them, And find in their souls No resistance against Thy decisions, but accept Them with the fullest conviction. 8. It may be observed that during the course of arguments attention of the petitioner was drawn to words" of sub-para 2 of para 6 of the petition and was asked as to who is competent to determine that publication of those laws which are necessary for information of people? 9. However, the petitioner could not submit valid explanation but while relying on PLD 1980 SC 160 stressed that every judgment and order was necessarily to be published for information and guidance of people. 10. It may be observed that in above said sub-para the petitioner has stressed for publication of "Laws" when obviously this section also does not put any restriction on publication of laws but permits publication of orders judgments which enunciate a principle of law or a question of law which is of first impression or distinguishes one etc. with permission of a Court or Tribunal. 11. Undisputedly such determination could be better made by authority, Court or Tribunal which pronounces the judgment or order. 12. The view is supported by verse 83 of Sura Al-Nisa. It reads as under:-- When there comes to them Some matter touching (Public) safety or fear, They divulge it. If they had only referred it To the Apostle, or to those Charged with authority Among them, the proper Investigation would have Tested it from them (direct). Were it not for the Grace And mercy of Allah unto you, All but a few of you Would have fallen (Ar Into the clutches of Satan. 13. So is the intent of Articles 189 and 201 of the Constitution. They read 33 under:-- "189. 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 of Pakistan. 201. Subject to Article 189, a decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all Courts subordinate to it." 14. The verses of the Holy Quran relied and quoted by the petitioner indeed are not relevant for declaring the impugned sections to be against the Injunctions of Islam. 15. The petition is, therefore, devoid of force and is dismissed accordingly. This is the reasoning of our short order dated 2.11.1992. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 FSC 14 [Appellate Jurisdiction] PLJ 1993 FSC 14 [Appellate Jurisdiction] Present: MUHAMMAD ILYAS, J NAZIR AHMAD-Appellant versus THE STATE-Respondent J.'il Criminal Appeal No.259/I of 1992, accepted on 29.11.1992. Prohibition (Enforcement of Hadd) Order, 1979 (P.O.4 of 1979)-- —Art.4-Heroin--Recovery of--Conviction for—Challenge to—Proposition that police officials are as good witnesses as others, is not disputed, but when prosecution case entirely rests upon them, their testimony should be scrutinized with utmost care and caution, and if there is any discrepancy in their evidence which creates doubt regarding their truthfulness, thenevidence alone would not justify conviction of accused—Held: In view of contradictions and other defects coupled with failure of police officials to associate any member of public with them and delay in despatch of sample, prosecution has failed to establish guilt of appellant beyond shadow of reasonable doubt-­ Appeal accepted. [Pp.l6&17]A&B NLR 1989 SP 507,1992 P.Cr.LJ. 1158, PU 1987 FSC 1 and PLD 1988 FSC 26 rel. Klian Mushtaq Ahmad Ktian, Advocate for Appellant. Ch. Muhammad Ibrahim, Advocate for State. Date of hearing: 29.11.1992. judgment This is a Jail appeal by Nazir Ahmad who has been convicted by Mr. Muhammad Ilyas, Additional Sessions Judge, Khushab, under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to undergo rigorous imprisonment for three years, whipping by 15 stripes and a fine of Rs.3000/- or, in default, to suffer further rigorous imprisonment for three months. 2. The prosecution case is that during nakabandi by police at Noorpur Morh (crossing) in the area of Police Station Gunjail, District Khushab, on 1st February, 1992, at about 12 noon, the appellant came up to the said Morh on Mianwali road, but on sighting the police he tried to make a retreat. This caused suspicion in the mind of Muhammad Ramzan, Head Constable, Ghulam Hussain, Foot Constable and others who had arranged the nakabandi. They caught hold of the appellant and arrested him. On search of his person, 50 grams of heroin was recovered from his possession. Out of the heroin so recovered, six grams was taken out as sample and sealed into a parcel. Then they drew up complaint, Ex.PB, whereupon a case was registered against him. The sample was sent to the Chemical Examiner for examination. It was reported by him that it contained heroin. His report is Ex.PD. Mushtaq Ahmad ASI investigated the case. While so doing, he prepared site plan, Ex.PC. Ultimately, the appellant was challaned and sent up before the learned Additional Sessions Judge to face trial under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979. 3. The appellant pleaded innocence and claimed that a false case had been cooked up by the police authorities to show their efficiency. 4. Prosecution examined the said Muhammad Ramzan, Ghulam Hussain and Mushtaq Ahmad as PWs 1, 2 and 3 respectively and also produced documentary evidence to prove its case. The appellant did not appear as his own itness and also did not produce any evidence. 5. In view of the evidence adduced before him, the learned Additional Sessions Judge found the appellant guilty and convicted and sentenced him as aforesaid. 6. It was contended by the learned counsel for the appellant that except two police officials no witness was produced to depose that the heroin in question was ecovered from the appellant. It was added by him that according to the statement of Muhammad Ramzan (PW.I) there were hotels and petrol pump near the place of occurrence but no person from the public was associated with the recovery proceedings. It was also pointed out by him that according to the prosecution it was at the said Morh that heroin in question was recovered and also weighed with the scale carried by Muhammad Ramzan, but it was stated by Muhammad Ramzan that all these proceedings were conducted at the check post near the Morh. In addition, it was submitted by the learned counsel that there was an unexplained delay of nine days in despatching the said sample to the Chemical Examiner. It was, therefore, the plea of the learned counsel that the prosecution had failed to prove its case and the appellant deserved to be acquitted. 7. In reply, it was urged by the learned counsel for the State that the police officials who appeared as eye witnesses were as good witnesses as those from the general public and their statements could not be discarded simply for the reason that they happened to be employed in the police service. According to him, delay in the despatch of the sample, by itself, did not warrant rejection of the prosecution version. He felt that there was no material discrepancy in the evidence of the prosecution and, therefore, the appeal was liable to be dismissed. 8. I agree with learned counsel for the State that mere delay in the dispatch of the sample does not justify the acquittal of the appellant but this factor coupled with the other circumstances do make the case against the appellant highly doubtful. One such circumstance is the failure of the police officials to associate any person of public with the recovery proceedings although, as testified by Muhammad Ramzan, who is one of the two eye-witnesses, there are hotels at a distance of 5 or 6 karams from a check post. Site plan, Ex.PC indicates that the check post is at some distance from the above Morh. Muhammad Ramzan further stated that there is a petrol pump which is about 500 karams from there. Further, according to Ghulam Hussain, the other eye-witness, the heroin was allegedly ,recovered from the appellant at the said Morh and it was also weighed there but Muhammad Ramzan had deposed that all the proceedings referred to by him (including the one relating to recovery of the heroin and its weighing) were completed at the check post. When cross-examined, in the first instance, Ghulam Hussain contradicted Muhammad Ramzan by saying that there was no hotel near the Morh but ultimately he had to concede that the hotels were there although, in his words, they were near the petrol pump. Even this statement of Ghulam Hussain runs counter to the statement of Muhammad Ramzan who stated that the hotels were at a distance of 5 or 6 karams but the petrol pump was about 500 karams away from the check post. I do not dispute the proposition that the police officials are as good witnesses as others but when prosecution case entirely rests upon them, their testimony should be scrutinized with utmost care and caution; and if there is any discrepancy in their evidence which creates doubt regarding their truthfulness, their evidence alone would not justify the conviction of the accused. In view of contradictions and other defects pointed out by me coupled with failure of the police officials to associate any member of the public with them in the matter of launching a criminal case against the appellant and delay in the despatch of the sample, I believe that the prosecution has failed to establish the guilt of the appellant beyond the shadow of reasonable doubt. He, therefore, deserves to be acquitted. In taking this view, I am fortified by the judgments reported as Muhammad Nasir Jamal v. Ttn> State (NLR 1989 SD 507), Khuda Bakhsh v. Tlie State (1992 P.O.L.J. 1158) (Karachi), Muhammad Sithail v. Tlie State (PLD 1988 FSC 26) and Badar-uz-Zaman v. Tlie State (PU 1987 FSC 1). 9. In result, I accept this appeal, set aside the judgment of the learned Additional Sessions Judge by which he convicted and sentenced the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and acquit B him, by giving him the benefit of doubt. He shall be set at liberty forthwith if not required in any other case. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 FSC 17 PLJ 1993 FSC 17 [Appellate Jurisdiction] Present: AU-AMA dr. FlDA muhammad khan and nazir ahmad bhatti, JJ BASH1R and 2 others-Appellants versus THE STATE--Respondent Jail Criminal Appeal No.75/I of 1992, partly accepted on 15.12.1992. Pakistan Peual Code, 1860 (XLV of 1860)-- —-S.395/34 read with Section 397-Dacoily--Offcnce of--Conviction for- Challenge to—It is proved from evidence that appellants 1 and 3 had committed dacoily with abetment of appellant No.2, in house of complainant party and during commission of that offence, they had also injured 5 persons-- Khizar Hayal PW permanently lost one eye as a result of shot fired at him by appellant No.l—Held: All three appellants are guilty of offence of committing dacoity in process of which they caused fatal injuries with deadly weapons-­ Held further: Appellants could legally be convicted under Section 395/34 read with Section 397 but could not be separately sentenced under Sections 307 and 326 PPC for causing grievous hurt-Conviction under Section 397 altered to that under Section 395/34 read with Section 397 and sentence maintained but conviction under Sections 307 and 326 PPC set aside. [P.22]A,B&C Mr. S.M. Abdul Wahab, Advocate for Appellants. Mr. Muhammad Aslam Uns, Advocate for Slate. Dales of hearing: 17 and 22.11.1992. judgment Nazir Ahmad Bhatti, J. Complainant Muhammad Yasin and his wife were asleep in the court-yard of their haveli on the night of 21.4.1990. At about 11-00 P.M. the complainant got up on hearing noise of a person falling inside his compound. He recognised the said person as accused Bashir and the latter was armed with carbine. Accused Bashir opened the gate of the haveli wbereapoa accused Hamid, armed with carbine, accused Liaqat, armed with sandhanva and another un-indentified accused, also armed with carbine, came inside. Accased Bashir and accused Hamid went inside and opened the door of the residential room. The complainant challenged them but they ordered him to keep quiet After some time accused Bashir and accused Hamid came outside the room and the former was having red colour purse of the complainant containing ornaments. The complainant raised alarm whereupon his father Shah Nawaz was attracted to the spot but the latter was fired at by accused Hamid hitting him on the right side arm. Simultaneously Liaqat Ali and Khizar Hayat were also attracted to the spot but they both were also fired at by accused Bashir whereby Liaqat Ali was hit on his abdomen and Khizar Hayat was hit on the mouth. The complainant over­ powered accused Bashir a"nd snatched the purse from him but accused Bashir and accused Liaqat Ali gave him blows with the butt of Carbine and Sandliaiwa. Mst. Maqsoodan Bibi wife of the complainant tried to rescue her husband but she was also given Sandhulwa blows on her arms by accused Liaqat Ali. In the meantime Asghar uncle of the complainant and other persons were attracted to the spot and in the struggle accused Bashir was also injured but the other accused escaped. Complainant Muhammad Yasin gave a written report of the occurrence to Muhammad Ayub Sub Inspector of Police Station Lundianwala on 21.4.1990 at 0.35 hours. During investigation it also transpired that Mst. Bahishtan, Mst. Nooran and Muhammad alias Mandu were also present alongwith the other accused outside the haveli of She complainant. The 4th person who had entered the haveli of the complainant was subsequently identified as accused Faliksher. Accused Liaqat Ali was absconding. On the same day the complainant recorded supplementary statement under Section 161 Cr.P.C. wherein he disclosed that the un-identificd accused mentioned in his first report was actually accused Faliksher. 2. Accused Bashir was apprehended from the spot on the same day by the complainant party and handed over to the investigating officer. Accused Hamid was arrested on 30.7.1990 and a carbine was recovered at his instance from the house of accused Muhammad alias Mandu father of accused Faliksher. The latter accused was 'arrested on 13.8.1990 and a carbine was also recovered at his instance. At the instance o! accused Bashir a carbine was recovered from baitliak of complainant Muhammad Yasin on 25.4.1990. Accused Faliksher and accused Mst. Nooran are brother and sister inter se and accused Mst. Bahishtan is'their mother. It was the case of the prosecution that brother of accused Faliksher was formerly employed by the complainant but he had terminated his service and for that grudge, the accused committed dacoily in the house of the complainant alongwith the other accused. 3. P.W.2 Mst. Maqsoodan Bibi, wife of the complainant, was examined by P.W.8 Dr. Muhammad Akram on 21.4.1990 at about 1-40 A.M. The Doctor found the following injuries on her person:— (1) A lacerated wound 4x^ cm on fore head, It was scalp deep. (2) A lacerated wound 2^x1 cm on back of right side of head. (3) A lacerated wound 2x2/3 cm on back of head. All the injuries were simple and caused by blunt weapon within three hours. The same doctor also examined complainant Muhammad Yasin on the same day at about 1-35 A.M. and found the following injuries on his person:— (1) A lacerated wound 3 cm x \ cm x bone deep on the right side of head close to fore head. (2) A lacerated wound 6 cm x 1 cm x bone deep on right side of head beh nd the above injury. (3) A lacerated wound 2 x 1 cm x scalp deep 1 cm behind injury No.2. (4) A lacerated wound 3 x 2 cm x scalp deep on left side of head. (5) A contused swelling 10x8 cm on back of left fore-arm. All the injuries were caused by blunt weapon within three hours. 4. P.W.7 Dr. Mubashar Asghar medically examined Shahnawaz on 24.4.1990 and found the following injuries on his person:— (1) A multiple lacerated circular wound 1/4 x 1/4 cm over an area of 20 cm x 15 cm, on the right upper arm and the right side of chest over an area of 25 cm x 10 cm. There was scabes on the wound. There is bluish swelling on the right upper arm. (2) Contused swelling 6 cm x 6 cm on left temporal region. The injury No.l was caused by fire-arm while injury No.2 was caused by blunt weapon within a duration of 4 days. On the same day at 12-00 noon the same doctor examined Liaqat Ali and found six lacerated circular wounds each 1 cm x 1 cm .over an area of 10 x 10 cm in the abdomen. The said witness was in serious condition and the injury was caused by fire-arm within 4/5 days. On 26.4.1990 the same doctor examined Khizar Hayat at 10-20 A.M. and found him in the following condition:-- "He was lying with both eyes covered with dressing. On removing dressing there were multiple lacerated circular wounds each of 1/6 cm x 1/6 cm each over an area of 10/12 cm on the fore head, both eyes, and hall of the mouth." 5. Injury was caused by lire arm within about 4/6 days. According to the report of the eye specialist of D.H.Q. Hospital Faisalabad Khixar Hayat had lost his vision permanently on left side due to injury which was declared as grievous. 6. All the 6 accused, except absconding accused Liaqat Ali, were sent up for trial before the Additional Sessions Judge Faisalabad who charged them under Section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and Sections 148, 149, 326 and 307 PPC. All the 6 accused pleaded not guilty and claimed trial. After the conclusion of the trial the learned Additional Sessions Judge acquitted accused Mst. Bahishtan, Mst; Nooran and Muhammad alias Mandu and convicted accused Bashir, Hamid and Faliksher. All the aforesaid 3 accused were convicted under Section 397/34 PPC and each of them was awarded imprisonment for life. 7. Accused Bashir was further convicted under Section 326 PPC for depriving P.W.4 Liaqat Ali of his eye-sight with a fire-arm and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- or in default to further undergo rigorous imprisonment for 2 years. Accused Bashir was also convicted under Section 307 PPC on two counts and sentenced to undergo imprisonment for life on two counts a d to pay a fine of Rs.10,000/- on each ' count or in default to further undergo rigorous imprisonment for 2 years on each count. 8. Accused Hamid was also convicted under Section 307 PPC for causing fire-arm injuries to P.W.5 Shahnawaz and was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/- or in default to further undergo rigorous imprisonment for 2 years. The learned Additional Sessions Judge further ordered that all the sentences of imprisonment were to run concurrently. 9. By the appeal in hand, received from jail, convicts Bashir, Faliksher and Hamid, have challenged their conviction and sentences. 10. It shall be seen that 5 persons were injured by all the 3 appellants during the occurrence. They are P.W.2 Mst. Maqsoodan Bibi, wife of the complainant, P.W.3 Khizar Hayat, P.W.4 Liaqat Ali, P.W.5 Shahnawaz and P.W.6 Muhammad Yasin complainant. P.W.2 Mst. Maqsoodan Bibi and P.W.6 Muhammad Yasin complainant both corroborated the contents of the F.I.R. Both stated that they were asleep in the court-yard of their haveli on the night of occurrence when at about 11-00 P.M. 2 persons jumped over the wall and opened the door of the haveli. She and her husband were awakened. Both identified them as Bashir and Hamid appellants herein, and both were armed with carbines. Then the other 3 accused also came inside the house and their names were Faliksher, Liaqat Ali and Muhammad alias Mandu. Out of them appellant Faliksher had a carbine while absconding accused Liaqat had sandhaiva. They further stated that appellants Bashir and Hamid fired carbine shots at P.W.5 Shahnawaz, P.W.3 Khizar Hayat and P.W.6 Muhammad Yasin and' injured them. It also came in the evidence of both these witnesses that they both were injured by absconding accused Liaqat Ali who dealt sandhaiva blows to each of them. P.W.3 Khizar Hayat also stated that when he went to the residence of the complainant he found acquitted accused Mst. Nooran and Mst. Bahishtan present outside the house while appellants Bashir, Hamid and Faliksher and absconding accused Liaqat were present inside the house and appellant Bashir fired at him and injured him on the face, both eyes and his sight was destroyed. This witness further stated that appellant Hamid fired at Shahnawaz and hit him on his right arm whereas complainant Muhammad Yasin was given sandhaiva blow by absconding accused Ljaqat and Ba.>li« gave him butt blow of carbine and he was injured. 11. P.W.4 Liaqat AH also went to the house of the complainant on the night of occurrence and accused Bashir fired at him a carbine shot hitting him on the abdomen. This witness further stated that P.W.3 Khizar Hayat was also fired at by appellant Bashir injuring him on his eyes. 12. P.W.5 Shahnawaz, father of the complainant, was asleep in his baithak and he heard alarm and went to the haveli of the complainant where he saw Faliksher, Hamid, Liaqat and Bashir in the court-yard. He further stated that accused Bashir, Hamid and Faliksher had carbines and absconding accused Liaqat had xandhaiwa. This witness was fired at by accused Hamid injuring him on his right aram when he tried to reach his son who was being threatened by appellant Bashir. 13. It shall thus be seen that 5 persons were injured by accused Bashir, Hamid and absconding accused Liaqat in the court-yard of the haveli of the complainant. Appellant Bashir injured the complainant with carbine butt and also fired at Khizar Hayat and injured him on his face and his eyes whereby the latter lost sight of one eye and also fired at P.W.4 Liaqat AH and injured him on his abdomen. Appellant Hamid fired at .W.5 Shahnawaz and injured him on his right arm. It can thus be gathered that appellants Bashir and Hamid were present in the court-yard of the haveli of the complainant armed with carbines. 14. Appellant Faliksher was not armed with any weapon but his presence inside the court-yard of the haveli of the complainant has been established because all the 5 prosecution witnesses had stated that he was present there. The learned counsel for the appellants had contended that appellant Faliksher was not present at the spot but in view of the clear and unambiguous testimony of the 5 eye witnesses his presence has been established at the spot. It had also come in the evidence that brother of appellant Faliksher was employed by the complainant party and the appellant was on visiting terms with the latter. It had also come in the evidence that a short time before the occurrence, the brother of this appellant had been removed from service. Actually this was the reason tor the commission of the offence of dacoity in the house of the complainant. 15. The learned counsel for the appellants contended that the appellants had not committed dacoity because no proof in this respect was found in the house of the complainant. He stated that the goods in the house of the complainant were neither scattered nor there were any traces of search made by any for taking into possession any ornaments and the offence of dacoity had not been proved. This contention loses force when we know that appellant Faliksher was on visiting terms with the complainant party and he had known all the ins and outs of the house-hold goods. Actually he had 14. More than sufficient evidence had been brought on the record to prove the guilt of the appellants about causing the murder of Ghulam Dastgir in furtherance of their common intention when the deceased threatened to disclose the circumstance of sodomy. However there had come no evidence on the record to prove the charge of sodomy or abduction for that purpose against the appellants. 15. A suo moto notice for enhancement of sentence was also given to both the appellants. However we have noted from the judgment of the learned Additional Sessions Judge that both the appellants were in their middle teens at the time of the commission of the offence. No doubt the deceased was also a child of 12/13 years of age but the appellants were also young boys at that time and that circumstance prevailed with the learned Additional Sessions Judge for not awarding the sentence of death to them. We are also of the opinion that due to the young age of the appellants the sentence of life imprisonment was quite appropriate. 16. Consequently we will dismiss both the appeals as also discharge the suo moto notice. (MBC) (Approved for reporting) Both appeals dismissed.

PLJ 1993 FSC 31 PLJ 1993 FSC 31 [Appellate Jurisdiction] Present: DR. TANZILUR REHMAN CJ. ZAFARULLAH — Appellant versus THE STATE —Respondent Criminal Appeal No.43/K of 1992 (also Crl. Appeal No.47/K of 1992 and Crl. Suo Moto Nos. 14/K and 16/K of 1992), decided on 30.8.1992. Prohibition (Enforcement of Hadd) Order, 1979 (PO 4 of 1979) Art.3/4 — Heroin — Recovery of — Conviction for — Challenge to -- There is full detail of case property in Chemical Examiner's report and seals were stated to be perfect — PWs 1 and 3 were cross-examined at length but no question about tampering with sample was put to them — Since Zafarullah accused was fully seen by both PWs, identification was not necessary — Held: Mere delay in sending case property, will not, by itself, vitiate trial — Held further: Both appellants have rightly been convicted, but in view of huge quantity of heroin powder, recovered in this case, sentence is enhanced to life imprisonment. [P34&36]A,B,C, &D. PLD 1988 SCI distinguished Mr. Muhammad Saleh G.Memon, Advocate for appellant (in Crl. Appeal No.43/K of 1992). Mr.Nuruddin Sarki. Advocate for appellant (in Crl. Appeal No.47/K of 1992). Mr.Zaheer Ahmad Qureshi, Advocate for State (in both appeals). Date of hearing: 19.8.1992. JUDGMENT Dr. Tanzilur Rahman, Chief Justice. -- These are two appeals, bearing i Nos.43/K and 47/K of 1992. Both the appeals have arisen out of a common judgment a dated 15.4.1992, passed by learned II Additional Sessions Judge Karachi East, whereby I he convicted both the appellants under Article 3/4 of the Prohibition (Enforcement of i Hadd) Order, 1979, (hereinafter called "the said Order") and sentenced (them) to suffer f R.I. for a period of five years with benefit of section 382-B Cr.P.C., and whipping [ numbering fifteen stripes to each of the accused/appellants namely, Zafarullah son of t Abdul Rasool and Muhammad Saleh son of Haider Bakhsh. It is, thus, intended to / dispose of the aforesaid two appeals by this common judgment. 2. The accused/appellants Muhammad Saleh and Zafarullah and co-accused Saida Jan, were challaned by Police Station Gulzar-e-Hijri under Article 3/4 of the said 1 Order, in crime case No. 212 of 1986, but co-accused Saida Jan is still absconder. I 3. The. case of the prosecution, as revealed in the FIR, is that on 4.7.1986 SIP Dawoocf Akbar, afongwith his subordinate staff, was on patrolling duty in the area and when reached at Taj Hotel in Hassan Colony Karachi Suhrab Goth, at 4.30 p.m. they found a Toyota Corolla Car bearing No.640-048, coming from Hassan Colony. The car was being driven by the accused/appellant Muhammad Saleh) -son of Haider Bakhsh. The complainant SIP Dawood Akbar, signalled the car to stop but the driver of the said car (Muhammad Saleh) after stopping the car tried to reverse it, which suspected the complainant. The complainant with the help of PWs Nazar Gul, Hanzai Gul succeeded in getting the car stopped, but soon after one of the culprits, who was sitting on the back seat of the car, succeeded in making his escape good. However, the driver was arrested. The car was searched and a black bag was found lying on front seat, having mark of Japan Echolae in English language. The bag was opened in presence of witnesses and ten white cloth bags were found therein. In those bags it was found that heroin was packed, and each bag was containing a weight of about one kilogram and thus having a total quantity of ten kilograms herein, which was recovered from the said bags. One gram each was separated from those bags, as sample, for sending the same to the Chemical Examiner. The sample as well as the main quantity were sealed separately. The driver, Muhammad Saleh, disclosed the name of his other companion as Zafarullah son of Abdul Rasool. Such mashirnama of recovery of hereoin powder and also arrest of the accused/appellants was prepared oR the spot. The accused driver, case-property and the car were brought to the Police Station and a case was registered. The statements of both the mashlrs Nazar Gul and Hanzai Gul were recorded. ccused/appellant Zafarullah was arrested by Town Police Khairpur on 9-11-1986 in another case under Article 3/4 of the said Order, in crime case No.290 of 1986. His custody was handed over to Police Station Gulzar-e-Hijri on 24-11-1986. The accused Saida Jan was declared as absconder on 15-2-1987 and the case was ordered to be proceeded against him under section 512 Cr.P.C. Charge was framed against the accused, the appellants herein, on 10-3-1987. 4. The prosecution, in order to prove the charge, examined P.W. 1 Dawood Akbar, SIP, Police Station, GuIzar-e-Hijri, P.W.2 Sher Muhammad Awan, Head Constable, P.S. Gulzar-e-Hijri and P.W.3 Ghulam Samdani Pathan, Inspector, P.S. Aram Bagh, P.W.4 Muhammad Gul pa than, cloth merchant P.W.5 Shawang Gul, cloth merchant, P.W.6 Hazara Khan Afridi, Taxi driver and P.W.7 Muhammad Ayub, SIP (SHO New Town). Asif Hussain, Police Constable, P.S. Gulzar-e-Hijri was examined as court witness. 5. The statements of the-appellants Muhammad Saleh and Zafaruliah were recorded under section 342 Cr.P.C They declined to make statement on oath, as required under section 340 (2) Cr.P.C. and also declined to produce any witness in defence. 6. Mr. Nuruddin Sarki, learned counsel for the appellant Muhammad Saleh, in Cr. Appeal No.47-K of 1992 confined to the raising of the following pleas^j in support of the appeal: 7. Firstly, it was no-where stated that the contraband, alleged to have been recovered in the case, was weighed and found to be ten kilograms. True, the prosecution witnesses, the I.O. and the mashirs have stated the weight was ten kilograms approximately but no question as to the weight was put to the witnesses in cross-examination. As such, total weight of the contraband 10 bags, containing one kilogram each, stands proved to be ten kilograms approximate. 8. Secondly, the learned counsel submitted that as per Chemical Examiner's report, Exh.9, one sealed packet was sent by the S.H.O, P.S. Gulzar-e-Hijri on 8-9-1986, as per his letter dated 7-9-1986, by the hand of P.C. Taj Muhammad. The incident took place on 4-7-1986. It is thus not known where the sample remained for about two months. The learned counsel thus submitted that on account of delay in sending the sample, no reliance can be placed on the report of the Chemical Examiner. Reliance as placed by the learned counsel on Farooq-ur-Rahman vs. The State (1992 MLD 349), where the learned Single Judge of the Peshawar High Court observed that- "There has also been a delay of one month in sending the contraband to the Chemical Examiner. The contrabands were allegedly recovered on 12-5-1987 which were received by the Chemical Examiner on 12-6-1987. Nazif Shah, S.H.O (P.W.3) did not know where for one month the specimens were kept. The Moharrir to whom the specimens were given was not produced as witness in the case. I am of the view that no importance can be given to this report." 9. To appreciate the above plea, it is beneficial to refer to the evidence that has come on record in this respect. P.W.I Dawood Akbar (Exh.6) stated in his examination-in-chief that: - "I had despatched the samples of the heroin powder to the Chemical Examiner for examination and report". As per note, the sample packet was un-sealed in the Court and the witness stated:- "I see, it is the same, which I had sent to the Chemical Examiner and produce the same as article 'A'." In cross-examination the witness further stated that:- "I handed over samples and heroin to the I.O. of this case Ghulam Samdani, Inspector". The witness further stated that:- "It is correct to say that just after lodging F.I.R of this case I handed over investigation to Inspector Ghulam Samdani". The witness also stated that Murtaza was the Head Moharrir of the Police Station Gulzar-e-Hijri, at the time of incident. Inspector Ghulam Samdani, P.W.3 (Exh. 11) was also examined as a witness and in his examination-in-chief, on the point at issue. he stated as under:- I sent heroin sample for examination to Chemical Examiner". He further stated in the cross-examination that:- "The case-property was handed over to Head Moharrir on the day of its recover) for safe custody and also for sending the position (sic) perhaps, powder) seized as sample for chemical analysation". He further stated that at the time when challan was submitted, the samples were sent to the Chemical Examiner. 10. It appears that P.W.I.Dawood Akbar, brought the case-property and handed over the same to Inspector Ghulam Samdani P.W.3, who, in turn, passed on the same to the Head Muharrir, Murtaza, for safe custody. The learned counsel stressed that Murtaza, Head Moharrir, having not been examined, it cannot be ascertained as to the lodging of the case-property and remaining the same in his custody. 11. I have carefully looked into the report of the Chemical Examiner Exh.9 and find that full details of the case property have been mentioned in the said report, particularly, the seals were also stated to be "perfect". It is also noticeable that the witnesses, particularly, P.W.I and P.W.3 were cross-examined at great length, but not a single question was put to any witness as to the tampering with the sample. Tampering with the sample, having not been challenged at the trial stage, the objection as such, has no force. In such circumstances, mere delay in sending the case-property will not, by itself, vitiate the trial. In any case, as stated by P.W3, the requisite permission from the concerned D.S.P. was to be obtained. In view of the above, the delay in sending the sample has been explained. 12. The case (1992 MLD 349), cited by the learned counsel, is distinguishable inasmuch-as in the cited case there was nothing to show as to the custody of parcel during the period in question was not known and the record of the trial Court was silent about it, whereas in the instant case, the S.H.O., P.W.3 has nowhere stated that he did not know where the samples and case-property were kept. On the other hand, he was categorical in his statement that he handed over the case-property to Head Moharrir on the day of its recovery for safe custody and also for sending the samples for chemical examination. 13. It may be added that in order to obviate any doubt and to do justice in the case, the case-property was produced by the Police Constable of P.S Gulzaar-e-Hijri, as directed by this Court telephonically. M/s Nuruddin Sarki and Muhammad Saleh G. Memon, were asked if they wanted to make any objection/submission about the same but both of them stated before me that "they have nothing to say about the caseproperty". As such, the castj-property was returned intact. Thus no tampering was alleged before me by the learned counsel even at the appellate stage. 14. In result, the appeal is without any merit. The judgment impugned in appeal is well-reasoned. The appeal merits dismissal. 15. As regards the other appeal, bearing No.43/K of 1992, Mr. Muhammad Saleh G. Memon, learned counsel for the appellant, Zafarullah, submitted that the appellant as alleged, had made his escape good coming out of the car on 4.7.1986 and was apprehended by Khairpur Police on 8.11.1986. He was not known to the Police party and as such identification test in connection with the appellant was necessary. Reliance was placed by him on Alim Vs. The State (PLD 1967 Supreme Court 307). In that case the witness had only a fleeting look at the assailant and had picked out the assailant at the identification parade. The Court observed that there was a clear possibility arising out of their statements that they were assisted to do so by being shown the accused person earlier. It was thus observed that:- "Under such circumstances the sole reason to. the conflicting statements by the wi nesses could be that they felt unable to make themselves responsible for conviction of accused. In other words, even if their identification of accused at the identification tests was bonafide, at the trial they were not i ble to say with certainty that he was the murdered. The question of reasonable doubt must be approached in such case from a wider examination of the circumstances of observation, and a closer consideration of the possible influences working on the minds of the witnesses, and it is unsafe to place full reliance only on the Committing Court statement of the eye-witnesses, on the point of identification". 16. The facts of the present case are somewhat not similar. The appellant Zafarullah was already known to P.W.I Dawood Akbar, the ASIP at Gulzar-e-Hijri Police Station Karachi East. He being on patrolling duty had come across the incident. This was so stated by P.W.3 Ghulam Samdani, the then S.H.O. of the Police Station Gulzar-e-Hijri. Furthermore, P.W.I Dawood Akbar (Exh.6) has stated in his cross-examination that "accused Zafarullah tried to run away from the car after getting down from the back side of the car of left door". P.W.3 Ghulam Samdani (Exh.ll) stated in his cross-examination that "there was no suspicion about Zafarullah's identity. As such, it was not mentioned by the complainant in F.I.R". 17. Reading the evidence of the above said two witnesses together it seems that since the accused Zafarullah was fully seen by both the witnesses, their identification test was not necessary. Both the witnesses are consistent about the presence and identity of the accused Zafarullah. Reliance may, however, be placed on Muhammad Bashir Alim Vs. The State (PLD 1988 SC 1). It may further be added that in the cited case, it appears that the witnesses were not of one voice as to the identity of the murderers. The cited case is, therefore, distinguishable! 18. Mr. Memon, then submitted that the heroin powder alleged to have been recovered was not weighed. It appears that each theli appears to have been estimated of one kilogram weight. The total weight of ten thelies was, therefore, estimated to be ten ri.ilograms. No question was put to the witness in the cross-examination that the said hereoin powder was not ten kilograms. However, the case-property was produced before me but the learned counsel did not request for weighment of the said thelies. As such the point looses all force. 19. The learned counsel lastly submitted that it has not been shown in the evidence that the other co-accused Muhammad Saleh, the driver has any connection with Zafarullah, the co-appellant. As the presence of Zafarullah stood proved in the car which was being driven by Saleh and the recovery of heroin was made from the said, car, the burden was on the appellant Zafarullah to show that he had no connection with the driver or the heroin. The only plea which was taken by Zafarullah in his defence was that the driver Saleh had taken his name and involved him due to enmity between him and the said Saleh. The plea of this motive, having been taken, has not been proved at all and the appellant Zafaruliah has failed completely to prove it. As such, his false implication by the driver Saleh, as alleged, has no base. 20. 20. I have perused the entire evidence with the learned counsel and have read the judgment with their assistance. I have no doubt in my mind that appellant Saleh as well as appellant Zafarullah have rightly been convicted of the offence. The judgment gives cogent reasons for coming to the conclusion about the presence of both the appellants in the car and recovery of the heroin powder. I arn, however, of the view that conviction under Articles 3 and 4 both cannot be sustained. Since the recovery of the heroin powder was made while the same was being transported from Sohrab Goth to some other destination, on Super Highway, the appellants are convicted under Article 3 of the said Order only. 21. As regards the sentence, Criminal Suo Moto Nos. 14/K and 16/K were issued to the appellants. In view of the huge quantity of the heroin powder, recovered in the case, the sentence is enhanced to life imprisonment. 22. In result, both the appeals stand dismissed with the modification of the sentence enhanced, as aforesaid. 23. Before parting with the case, it may be added that Toyota Corolla Car No.640- 048, which has been used for transporting the heroin from Sohrab Goth Karachi, be produced in the Court of II-Additional Session Judge, to be dealt with according to the provisions of the Prohibition (Enforcement of Hadd) Order, 1979, under intimation to this Court. (MBC) (Approved for reporting) Orders accordingly

PLJ 1993 FSC 37 PLJ 1993 FSC 37 [Appellate Jurisdiction] Present: dr.fida muhammad khan, nazk ahmad bhatti and muhammad ilyas, JJ. NAEEM AKHTAR and another — Appellants Versus THE STATE Respondent Criminal Appeal No.253/I of 1992 (linked with M.R.No.5/I of 1992) accepted on 11-1-1993. (i) Criminal Trial Murder — Offence of ~ Conviction for — Challenge to — According to FIR which is based on information supplied by PW9, younger sister of deceased lady, Ghulam Mustafa and two un-known persons had taken away deceased from her house and when her father asked Ghulam Mustafa to return Msf.Naheed Akhtar, he promised to do so but ultimately refused to return her — According to this version, Ghulam Mustafa was main culprit but in his statement, PW5 (father of deceased) stated that before nominating appellants, he had satisfied himself that he was not at fault — PW9 also did not adhere to her statement initially made by her before her father — Another deviation made by PW9 was that according to her initial disclosure, there were three persons but in her statement in court, she talked of two persons only who took away her sister — Held: All these factors create serious doubts with regard to persons, if any, who were with deceased when she left her house for death journey. [Pp.41 & 42]A (ii) Delay Murder — Offence of — Conviction for — Challenge to -- Therete delay of about a week in making FIR although complainant's village is at a distance of about two miles from police station - Explanation furnished in FIR for delay is negotiations with Ghulam Mustafa for return of Msf.Naheed Akhtar, but this explanation loses its force in face of statements of PWs 6 and 8 (who had allegedly seen her with appellants when she had left her house) and deposition of PW5 (in which Ghulam Mustafa had been exonerated by her) - Held: Lodging of FIR was deliberately delayed - Held further: Prosecution has failed to connect appellants with death of Mst. Njfl](eed Akhtar or removal of her ear-rings — Benefit of doubt extended and appellants acquitted. [Pp. 45 ]G & H (iii) Last seen Murder — Offenqp'of — Conviction for ~ Challenge to — Evidence of last seen was furnished by PW6 and PWS who deposed to have seen deceased in company of appellants at Suzuki Stand Taxila -- They stated to have imparted this information to complainant before he lodged complaint — There is material contradiction in statements of these PWs — They were related to deceased but it is strange enough that they did not make any effort to rescue her by making noise or otherwise — Held: Evidence of last seen furnished by PW6 and PWS was concocted at a very late stage so that it could serve as a prop for prosecution story, but it is all useless. [Pp.42 & 43 ]B (iv) Medical Evidence Murder—Offence of—Conviction for—Challenge to—Medical evidence simply shows that deceased lady had died of head injury which appeared to have been caused by a blunt weapon—HeId:Medical evidence does not, in any way, connect appellants with murder of My/.Naheed Akhtar or alleged removal of her ear-rings. [P 44 ]F (v) Motive Murder — Offence of - Conviction for — Challenge to ~ No motive has been disclosed in FIR — Appellants talked of application made by them with regard to alleged birth of illegitimate twin babies of deceased but this substantiates plea of enmity raised by appellants and cannot constitute a motive for murder of deceased lady — If appellant's application was false, aggrieved party was complainant party and, according to normal human conduct, if law was to be taken in hands, complainant party should have done so in order to avenge insult caused to that party by appellants — Held: There was no motive with appellants to commit murder of Mst. Naheed Akhtar. [r 44 Jrl (vi) Recovery Murder — Offence of — Conviction for — Challenge to — There is evidence of alleged recovery of ear-rings of deceased lady on pointation of appellants — It is clearly discernable from statement of recovery witnesses that appellants had jointly led to recovery of ear-rings — Held: Evidence of recovery on joint pointation of appellants is not only inadmissible but also unreliable. 1975 P.Cr.L.J 172 and 1976 P.Cr.L.J 1462 rel. Sardar Muhammad Ishaq Khan, Advocate for Appellants. Khan Mushtaq Ahmad Khan, Advocate for State. Date of hearing: 11-1-1993. judgment Muhammad Ilyas, J.- Naeem Akhtar son of Muhammad Din, aged 24 years, caste Kashmiri, and Ghulam Masood son of Ghulam Sarwar, aged 23 years, caste Gujar, both residents of village Mehesian, Police Station Wan Cantt., District Rawalpindi, faced trial before Malik Ata Rasool Joya, Additional Sessions Judge, Rawalpindi, under Sections 302 and 411 read with Section 34 of the Pakistan Penal Code and Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The learned Additional Sessions Judge convicted both of them under Section 302 read with Section 34 of the Pakistan Penal Code and sentenced each of them to death and also to pay a fine of Rs. 10,000/- or, in default of payment thereof, (to) undergo rigorous imprisonment for one year. They were also convicted under Section 411 read with Section 34 of the Pakistan Penal Code and sentenced to suffer rigorous imprisonment for three years each. Learned Additional Sessions Judge further directed them, under Section 544-A of the Code of Criminal Procedure, to pay Rs.15,000/- each, as compensation to the legal heirs of Ms. Naheed Akhtar who was alleged to have ( been) killed by them or, in default of payment of compensation, ( to) undergo further rigorous imprisonment for six months each. The learned Additional Sessions Judge found that no cogent evidence had been produced against them in regard to charge under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance and, therefore, he acquitted them of the said charge. The convicts have filed this appeal against the judgment of the learned Additional Sessions Judge while the learned Additional Sessions Judge has made reference (Murder Reference No.5/1 of 1992) for confirmation of sentences of death imposed on them. This judgment shall dispose "of both the matters. 2. Case against the appellants commenced with the filing of application Ex.PC by Abdul Malik (P.W.5), father of the aforesaid Mst. Naheed Akhtar. The complaint made by him in the said application was that he lived in village Mehesian alongwith his daughter Mst. Naheed Akhtar, aged 18-19 years. Her nikah with one Muhammad Ashraf had been performed but she had not been sent to her conjugal domicile before the incident, giving rise to the present case, had occurred. On 27th September, 1990, he (Abdul Malik) went to Wah Factory where he was employed and his wife, Mst. Sarwar Jan (P. W. 10) proceeded to the fields to do work in connection with the crop of maize grown therein. Mst. Naheed Akhtar nd her sister Mst. Shazma (as P.W.9 she mentioned her name as Shadmah Bibi and will hereinafter be referred to as such), aged 7-8 years, remained at home. At bout 3.00 p.m., he came home from the Factory when his wife, who had returned there earlier, informed him that on her coming back home, she saw Mst. Naheed Akhtar missing. On inquiry, she was informed by Mst. Shadmah Bibi that, at about 11.30 a.m., Ghulam Mustafa, their co-villager, came to their house alongwith two persons and took away Mst. Naheed Akhtar. On this, he repeatedly contacted Ghulam Mustafa and asked him to return Mst. Naheed Akhtar which he promised to do, but ultimately, on 2nd October 1990, he refused to return her. He made the grouse that Ghulam Mustafa and others had seduced his daughter for the purpose of illicit intercourse. 3. Abdul Malik handed.over his application, Ex.P.C., to Sub Inspector Muhammad Taj (P.W.14) and on the basis thereof FIR, Ex. PC/1 was drafted by Sub Inspector Khaliq Dad (P.W.12). Both of them were then posted at the Police Station of Wah Caritt. 4. Two'days later, i.e., on the 29th September, 1990, Aziz Gul (P.W.I) saw dead body of a female in Nallah Sooka in the area of Police Station Bahtar, District Attack, and reported the matter to Sub-Inspector Shah Jehan (P.W.13). He was then posted as S.H.O. at the Police Station of Bahtar. Sub-Inspector Shah Jehan took into possession the dead body and sent it to T.H.Q. Hospital Fateh Jhang for post-mortem examination. Foot Constable Muhammad Riaz (P.W.4) escorted the dead body to the said hospital where Dr. Anwarul Haq Qureshi (P.W. 16) performed autopsy on the dead body and found the following injuries thereon: (i) Lacerated wound, 10 x 2 cm, bone deep, on the back of head. Occipital bone and both temporal bones fractured. (ii) Abraded area, 5x1 cm, on the middle part of nose. Nasal bone fractured. (iii) Upper jaw separated into two parts from the centre. In the opinion of the said doctor, death of the lady, examined .by him occurred due to injury No.l. He was of the view that all the injuries on her person were caused by blunt weapon. Ex.PL/1 is the post-mortem report recorded by the said doctor. Amongst other material, he took into possession vaginal swabs of the dead body but there is no opinion of the Chemical Examiner in regard to these swabs. Report of the Chemical Examiner is Ex. PN in which it has been simply recorded that no poison was detected in the articles sent to him. 5. Dr. Anwarul Haq Qureshi handed over the last worn clothes of the said lady to Constable Muhammad Riaz. These clothes were Shirt Ex.Pl, Shalwar Ex.P.2, Buniyan Ex.P.3 and body (brassiere) Ex.P.4 which the said Foot Constable passed on to S.H.O., Shah Jehan who took them into possession vide memo Ex.PB. The S.H.O. then got the dead body buried under the supervision of Chairman, Municipal Committee, Fateh Jhang. 6. On coming to know of the spotting of aforesaid dead body, Abdul Malik (P.W.5) and Mst. Sarwar Jan (P.W. 10), who are the parents of Mst. Naheed Akhtar deceased, went to Police Station Bahtar where clothes found on the dead body were shown to them. They identified these clothes as those of Mst. Naheed Akhtar. Thereafter, the dead body was exhumed and shown to them. It was also identified by them as that of their "daughter, Mst. Naheed Akhtar. Thereafter, the dead body was brought to their village and re-buried there. 7. Sub-Inspector Muhammad Taj (P.W. 14) investigated the case and recorded the statements of witnesses. According to the prosecution version it was during the course of investigation that the appellants led to the recovery of ear­ rings which were lying under a wall clock at the house of Ghulam Masood appellant. These ear-rings were identified by Abdul Malik and Mst. Sarwar Jan as those of M,st. Naheed Akhtar deceased. After completing the investigation the said Sub-Inspector sent up the appellants to face trial on charges mentioned at the outset. 8. The appellants pleaded not guilty and claimed to be tried. 9. The prosecution produced as many as 16 witnesses and also produced a number of documents to prove its case. Thereafter, the appellants were examined under Section 342 of the Code of Criminal Procedure. They stated that the prosecution evidence was incorrect and explained that the witnesses had deposed against them due to relationship with the deceased and enmity with them. While replying to the question as to why the case had been brought against them, each came up with the following plea: "Due to enmity and false suspicion. The deceased was lady of easy virtues. She gave birth to twin illegitimate babies and the same were in the fields. I and my co-accused gave applications to higher authorities and informed them. Though the matter was hushed up but the complainant and his relatives have grudge against us." 10. The appellants did not appear as their own witness and also did not like to produce any evidence in defence. 11. As stated earlier, the learned Additional Sessions Judge, who tried the appellants, came to the conclusion that charges under Sections 302 and 411 read with Section 34 of the Pakistan Penal Code had been established against the ; appellants. He, therefore, convicted and sentenced them on the said charges. According to the learned Additional Sessions Judge, charge under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance had, however, not been proved and, therefore, he acquitted them of the said charge. 12. We have heard learned counsel for the appellants, Sardar Muhammad Ishaq Khan, Advocate, and learned counsel for the State, Khan Mushtaq Ahmad Khan, Advolftite, at considerable length. 13. Undoubtedly, there is no ocular evidence in the instant case. The prosecution case rests on the circumstantial evidence. It is now to be seen whether that evidence can sustain the conviction of the appellants. In the first instance, we would like to look into the circumstances in which I Mst. Naheed Akhtar had allegedly left her house before falling into the hands of! / death. According to the FIR, Ex.PC/1, which is based on the information I (supplied by Mst. Shadmah Bibi (PW9), the younger sister of Mst. Naheed Akhtar, j Mst Naheed Akhtar was taken away from her house by Ghulam Mustafa and two | persons (not known to Mst. Shadmah) and that when her father, Abdul alik asked Ghulam Mustafa to return Mst. Naheed Akhtar he promised to do so but ultimately refused to return her. According to this version, Ghulam Mustafa was the main culprit but in his statement as P.W.5, Abdul Malik stated that before he nominated the appellants as the culprits he had satisfied himself that Ghulam Mustafa was not j at fault. In her statement as P.W.9, Mst. shadmah Bibi did not adhere to th e statement initially made by her before her father and said that Naeem Akhtar appellant alongwith another person, who was not then known to her but \ subsequently turned out to be Ghulam Masood appellant, came to their house and forcibly took away Mst. Naheed Akhtar. She did not make any mention of the use of force in her initial disclosure. Another deviation made by Mst. Shadmah Bibi was that according to her initial disclosure, there were three persons (Chulam , Mustafa and two unknown persons) who took away Mst. Naheed Akhtar from her :house but in her statement in Court she talked of two persons only, i.e., Naeem Akhtar appellant and one unknown person. Mst. Sarwar Jan (P.W.10), who is the | mother of the deceased, did not say anything with regard to the information I imparted to her by Mst. Shadmah Bibi although she (Mst. Sarwar Jan) was the first one who came back home after the exit of Mst. Naheed Akhtar and learnt from Mst. shadmah Bibi that Mst. Naheed Akhtar had disappeared. All these factors create serious doubts with regard to the persons, if any, who were with Mst. Naheed Akhtar when she left her house for the death journey. 15. There is also evidence of last seen which was furnished by Ghulam Asghar ! (P.W.6) and Muhammad Ayub (P.W.8). They deposed that they saw Mst. Naheed Akhtar in the company of the appellants at the Suzuki Stand of Taxila. Their plea is clearly an afterthought inasmuch as it does not find mention in the application, Ex.PC, which constitutes the basis of the FIR, Ex. PC/1. This application was made by Abdul Malik (P.W.5) after Ghulam Asghar and Muhammad Ayub had allegedly seen Mst. Naheed Akhtar in the company of the appellants and had imparted this information to Abdul Malik as well. According to Ghulam Asghar and Muhammad Ayub they saw Mst. Naheed Akhtar with the appellants on 27 th September, 1990 and this was disclosed by them to Abdul Malik on the same day, in the evening. As noted earlier, the said application (Ex.PC) was made by Abdul Malik on' 2nd October, 1990, i.e., about a week after receiving information supplied to him by Ghulam Asghar and Muhammad Ayub in respect of the presence of Mst. Naheed Akhtar with the appellants at the said suzuki stand but in the application he did not say a word in this regard. Then, there is a material contradiction in the statements of Ghulam Ashgar and Muhammad Ayub. Ghulam Asghar said that the appellants and Mst. Naheed Akhtar were standing at the Suzuki stand when they were sighted by them (witnesses) but according to Muhamma Ayub they (Mst. Naheed Akhtar, etc.) were sitting in a moving suzuki van when i they had spotted them. It may be noted here that both Ghulam Ashgar and) Muhammad Ayub were related to Mst. Naheed Akhtar but, strangely enough, they j did not make any effort to find out as to where she was going; and if she was being | taken away forcibly, they did not make any attempt to rescue her by making noise j or otherwise. It is also to be pointed out that according to Muhammad Ayub, Mst. \ Naheed Akhtar was "wearing a veil" when she was seen in the suzuki van. He did i not say that the veil was on her face. The word "wearing", however, indicates that i the veil was covering her face because veil is generally used for that purpose. If it j was so, he could not possibly know that the lady in a veil was Mst. Naheed Akhtar. ' It may be added here that veil was not amongst the clothes which were found on | her dead body and identified by her parents. Further, it is in the statement of Abdul i Malik that Ghulam Asghar and Muhammad Ayub were present when he (Abdul j Malik) made application, Ex.PC, but it is amazing that there is no mention of the j Taxila episode in the said application. We cannot, therefore, help taking the view j that the evidence of last seen, which is comprised of the statements of Ghulam j Asghar and Muhammad Ayub, was concocted at a very late stage so that it could j serve as a prop for the prosecution story, but it is all useless. We are, therefore, i not inclined to rely on their evidence. 16. There is also evidence of the alleged recovery of ear-rings, Ex.P6/l-2, of | Mst. Naheed Akhtar on the pointation of the appellants. Sub-Inspector Muhammad i Taj (P.W. 14) said that he effected the recovery in the presence of Abdul Malik j (P.W.5), Ghulam Asghar (P.W.6) and Muhammad Siddique (P.W.7) who are! witnesses of the recovery memo, Ex.P6/l-2. It is clearly discernible from their' statements that the appellants had jointly led to the recovery of ear-rings. Evidence j of such recovery is, not admissible. If any authority were needed for this proposition we would, with respect, refer to the cases reported as Khalas Khan and another vs. The State (1975 P.Cr. L.J. 172) and Abdul Ghani and 3 others vs. The ' State (1976 P.Cr.L.J. 1462). 17. Besides the above legal objection to the recovery of ear-rings, there are material discrepancies in the evidence in this behalf. According to the recovery memo, Abdul Malik (P.W.5) had also witnessed the recovery but it was stated by him, while under cross examination, that he did not do so and remained at Police Post No.2 till the ear-rings were brought to the Police Post and were identified by him as those of Mst. Naheed Akhtar. As against this, it was deposed by Sub- Inspector Muhammad Taj that Abdul Malik had also gone to the place of recovery. oreover, it was stated by Ghulam Ashgar that he and Muhammad Siddique went to the Police Post at 2 or 2-3.00 p.m. for proceeding onward to the place of recovery but Muhammad Siddique said that they went to the Police Post at 8.00 j a.m. Also, according to Ghulam Asghar time of recovery was about 6.30 p.m., but in the words of Muhammad Siddique it was 9.00 or 9.30 a.m. Abdul Malik, the father of the deceased, did not make any mention of ear-rings in the application, Ex.PC. He also did not produce any receipt or witness to establish that he got prepared or purchased ear-rings for use by the deceased. The evidence of recovery is, therefore, not only inadmissible but also unreliable. We would, therefore, like to discard it. 18. This brings us to the motive for the offences attributed to the appellants. No motive has been disclosed in the FIR. This has also not been done in the statement of the complainant or that of any body else. The appellants talked of application made by them with regard to the alleged birth of illegitimate twin babies of the deceased but this substantiates the plea of enmity raised by the appellants and can not constitute a motive for the murder, etc., of Mst. Naheed Akhtar by them. If the appellant's application was false the aggrieved party was the complainant party and, according to the normal human conduct, if law was to be taken into hands the complainant party should have done so in order to avenge the insult caused to that party by the appellants. In that case, the complainant party should have caused harm to the appellants or taken their lives but not vice versa. In the circumstances, we feel that there was no motive with the appellants to hack Mst. Naheed Akhtar to death. 19. The medical evidence simply shows that Mst. Naheed Akhtar died of the head injury which appeared to have been caused by a blunt weapon. It is not the prosecution version that-the appellant used any blunt weapon to kill her. Injuries found on her dead body could be caused by her drowning in Nallah Sooka which ; also contained water due to the falling of rain. In this connection, statement of Aziz Gul (P.W.I) deserves special attention. As indicated earlier, there is no opinion of ! the Chemical Examiner with regard to the vaginal swabs taken from the dead body j of Mst. Naheed Akhtar. Initially, Dr. Anwarul Haq Qureshi, who performed posti mortem examination on the dead body of Mst. Naheed Akhtar, suspected it as a ; case of poisoning, but according to the opinion of the Chemical Examiner no i poison was found in the material supplied to him by the said doctor. In the circumstances, the medical evidence does not, in any way, connect the appellants i with the death of Mst. Naheed Akhtar or the alleged removal of her ear-rings. 20. Now, a few words about the site plans produced in this case. Site plan, Ex.PL was prepared by Sub-Inspector Muahmmad Taj (P.W.14). The other site plan is Ex.PA. It was drawn up by Fazal Hussain (P.W.3), who is a Patwari. In the site plan Ex.PL a place has been shown where, according to the appellants, they had killed Mst. Naheed Akhtar. The fact that the accused pointed out the said place to the Sub-Inspector cannot fbe) said to be the discovery of a fact for the purpose of Section 27 of the Evidence Act. It was so held by a learned Division Bench of the erstwhile High Court of (West) Pakistan in Muhammad Ramzan vs. The State (PLD 1957 (W.P.) Lahore 956). Provisions of Article 40 of the Qanoon-e-Shahadat Order, which is now holding the field, are similar to that of Section 27 of the Evidence Act. Respectfully relying on the said precedent case, therefore, we would, exclude the site plan, Ex.PL from consideration. As for the site plan Ex.PA, prepared by Fazal Hussain Patwari, it was admitted by him as P.W.3, that it was not drawn up on the pointing out of any witness. This too is, therefore, of ' no consequence. The prosecution has not named any person who had witnessed the killing of Mst. Naheed Akhtar by the appellants. In the circumstances, the site plans do not advance the prosecution case. 21. As indicated in the beginning, there is a delay of about a week in the making of the FIR although the complainant's village is at a distance of about two miles from the Police Station Wah Cannt. Explanation furnished in the FIR for the delay is the negotiations with Ghulam Mustafa for the return of Mst. Naheed Akhtar but this explanation loses its force in the face of statement of Ghulam Asghar and Muhammad Ayub (who had allegedly seen her with the appellants on the day when she had left her house) and the deposition of Mst. Shadmah Bibi (in which Ghulam Mustafa had been exonerated by her). We, therefore, feel that the lodging of the FIR was deliberately delayed. It is astonishing to see that none of the appellants had been named in the FIR despite the time thus gained by the complainant coupled with the fact that according to the statement made by Mst. Shadmah Bibi in the Court she knew Nateem Akhtar appellant when he alongwith his co-appellant had forcibly removed Mst. Naheed Akhtar from her house. All this does not reflect well on the prosecution case which has come up with conflicting versions with regard to those who had taken away Mst. Naheed Akhtar and thrown her in the valley of death. 22. As already noted there is no ocular evidence in regard to any of the offences attributed to the appellants. Material pieces of circumstantial evidence produced by the prosecution to prove its case have been discussed and found to be worthless. We are, therefore, constrained to hold that the prosecution has failed to connect the appellants with the death of Mst. Naheed Akhtar or the removal of her ear-rings. Case brought against them is highly doubtful. Therefore, by giving them the benefit of doubt, we set aside the conviction and sentences imposed on the appellants, under Sections 302 and 411 read with Section 34 of the Pakistan Penal Code and order their acquittal. This means that the sentences of death awarded to the appellants are not confirmed. The appellants shall be set at liberty forthwith if not required in any other case. 23. Murder Reference No.5/1 of 1992 made by the learned trial court is disposed of accordingly. 24. Before parting with this case we would like to express our displeasure over the manner in which the learned Additional Sessions Judge ordered that the two appellants be sent to the gallows. His judgment mainly gives a narration of the evidence produced in the case. The learned Additional Sessions Judge has written about a page only to hold that the appellants had committed offence punishable under Sections 302 and 411 read with Section 34 of the Pakistan Penal Code. He has completely overlooked infirmities in the prosecution evidence which float on the face of the record. We will not like to go into reasons behindJUs shortcoming in this regard. May be it occurred due to his inexperience in the-field of criminal work. We, however, do expect him to be careful in future in dealing with cases involving lives of the people. Any future lapse on his part will be dealt with severely. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 FSC- 46 [Appellate Jurisdiction] PLJ 1993 FSC- 46 [Appellate Jurisdiction] Present: MUHAMMAD ILYAS, J. WALAYAT KHAN — Appellant versus THE STATE — Respondent Criminal Appeal No.31 I/I of 1992, accepted on 17-1-1993 Prohibition (Enforcement of Hadd) Order,1979(P.O.4 of 1979) Art.4- Heroin — Recovery of — Conviction for — Challenge to — Foot Constable Tanveer Asghar Shah was a material witness inasmuch as he was alleged to have searched person of appellant and made recovery of heroin in question, but he has not been examined by prosecution - Confusion created by prosecution evidence with regard to dates on which parcel containing sample of heroin was taken to Chemical Examiner, has created serious doubt with regard to manner in which said parcel was dealt with - No member from general public was associated with recovery proceedings — Held: It is not possible to hold that prosecution has established guilt of appellant beyond reasonable doubt — Benefit of doubt extended and appeal accepted. [Pp48&49]A&B 1986 PCr.LJ (FSC)1723, 1986 PCr.LJ(FSC)1728, 1991 PCr.LJ (FSC) Note 40 and 1992 SCMR 1505 rel. M/s Arshad Atehmood Tabassum and Qari Abdur Rashid, Advocates for Appellant. Mr. Sajjad Ajzal Cheema, Advocate for State. Date of hearing: 17-1-1993. JUDGMENT This is an appeal by Walayat Khan son of Hassan Khan, caste Moman, resident of Taous Bandi, Police Station Garhi, District Mardan, against judgment, dated the 25th November, 1992, wherein Mr. Salahuddin Khan Sumbal, judicial Magistrate, Section 30, Attock, convicted him under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced him to suffer rigorous imprisonment for three years, to pay a fine of Rs. 2,000/- or, in default, undergo further rigorous imprisonment for one month and to suffer whipping by four strips. 2. The prosecution story is that on 17-11-1990 at 11-30 a.m. Assistant Sub- Inspector Muhammad Mehboob alongwith some other police officials were present at the Police Post, Attock Khurd, for the purpose of recovering narcotics and illicit arms when a bus came from Peshawar side. The police party developed suspicion in regard to the bus and started its checking. During the course of this exercise, heroin weighing 20 grams was recovered from the right side pocket of the shirt worne by the appellant. Out of this heroin, five grams were separated as a sample and sealed into a parcel. The parcel was sent to the Chemical Examiner ho furnished positive report, Ex.DE. After necessary investigation the appellant was challaned and sent up to face trial under Articles 3 and 4 of the said Order before the learned Magistrate. The appellant pleaded not guilty to the charge framed against him. 3. The prosecution produced as many as five witnesses to establish its case. In his statement, under Section 342 of the Code of Criminal Procedure, the appellant refuted what has been said against him. He appeared as his own witness and said that the heroin was recovered from a bundle of sugarcanes loaded on the bus but it was planted on him by the police officials. Relying on the evidence of the prosecution, the learned Magistrate convicted the appellant under Article 4 of the said Order and sentenced him as stated earlier. 4. It was contended by the learned counsel for the appellant that there were several contradictions and other discrepancies in the prosecution evidence which justified the conclusion that the prosecution had failed to prove its case beyond reasonable doubt and, therefore, the appellant was entitled to be acquitted. The defects and shortcomings pointed out by the learned counsel are enumerated below:- (i) The prosecution story is that the heroin in question was recovered from the pocket of the appellant by Foot Constable Tanveer Asghar Shah, but he has not been examined by the prosecution and no good reason has been given for this omission. (ii) According to Head Constable Muhammad Bashir (P.W.I) the recovery was made by the said Tanveer Asghar Shah, but in the words of Assistant Sub-Inspector Muhammad Mahboob (P.W.5) this task was performed by him (Muhammad Mahboob). (iii) It was stated by Head Constable Muhammad Bashir (P.W.I) that the heroin was weighed with measures of ten grams each but he was contradicted by Assistant Sub-Inspector Muhammad Mahboob (P.W.5) who came out with the statement that it was weighed with a measure of twenty grams. (iv) It was stated by Assistant Sub-Inspector Muhammad Farooq (P.W.3) that on 17th November, 1990 the said parcel containing the sample heroin was deposited by him in the Malkhana and then on 20th November, 1990 it was taken away from the Malkhana by Constable Amir Alam and delivered to the Chemical Examiner for scrutiny. He was contradicted by Constable Amir Alam when it was deposed by him as (P.W.4) that he delivered the parcel to the Chemical Examiner on 19th of November, 1990. The report of the Chemical Examiner is Ex.PE. This shows that the parcel was despatched on 18th November, 1990 and delivered in his office on 19th November, 1990. 5. Plea of the learned counsel with regard to the aforesaid infirmities is supported by the record. Foot Constable Tanveer Asghar Shah, who is a police official, was a material witness in this case inasmuch as he was alleged to have searched the person of the appellant and made recovery of the heroin in question but he was not examined by the prosecution. No reason whatsoever is forthcoming for this omission of the prosecution. Other contradictions pointed out by the learned counsel have also not been explained by learned counsel for the State. Confusion created by the prosecution evidence with regard to dates on which parcel containing the sample of the heroin was taken to the Chemical Examiner has created serious doubt with regard to the manner in which the said parcel was dealt with. Similar confusion was noticed in the cases reported as Mst. Sultan Zari vs. he State (1986 P.Cr.L.J. FSC 1723), Mst. Fehmida Begum and another vs. The State (1986 P.Cr.L.J. FSC 1728), Muhammad Saleem alias Cheema vs. The State (1991 P.Cr.L.J. FSC Note 40) and Gulab vs. The State (1992 S.C.M.R. 1502 at 1505), and the benefit thereof was given to the appellants by ordering their acquittal. It is also noteworthy that no member from the general public was associated with the recovery proceedings although there were several passengers i the aforesaid bus. 6. It appears that either the prosecution story is incorrect or the case has been handled in such a clumsy manner that it is not possible to hold that the prosecution has established the guilt of the appellant beyond reasonable doubt. Be that as it may, in the circumstances noted above, I cannot help giving benefit of doubt to the appellant. By so doing, therefore, I set aside the Conviction of the appellant and the sentences imposed on him, and order his acquittal. He shall be set at liberty forthwith if not required in any other case. 7. Criminal Misc. Application No. 193/1 of 1992 which is for grant of bail, does not call for any order as the appellant has been acquitted. With this observation, the said application is disposed of. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 FSC- 49 [Appellate Jurisdiction] PLJ 1993 FSC- 49 [Appellate Jurisdiction] Present: NAZIR AHMAD BHATTI, J. RAEES AHMAD Appellant versus THE STATE Respondent Criminal Appeal No.65/K of 1992, accepted on 14-12-1992. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979) S. 12- Abduction of boy for committing sodomy '— Offence of — Conviction for — Challenge to — Occurrence took place on 3rd of March and boy was admitted in a private hospital where he remained at least for 3 days and thereafter FIR was lodged on 7th March — No explanation of delay of 4 days in lodging report, has been furnished — Complainant made a report in same Police Station against appellant on 5th of March, but no such allegations of abduction and sodomy were made therein — That report was about some altercation which took place between complainant and appellant on matter that latter had beaten son of former — There was already bad blood between parties about their business — House where boy was allegedly taken by appellant, is adjacent to complainant's house and they being close relatives inter-se, question of abduction does not arise — Held: No sufficient evidence was brought on record to prove allegation of abduction against appellant - - Appeal accepted. [Pp 51 & 52 ]A,B&C Mr. Ghulam Mustafa Memon, Advocate for Appellant. Sh. Azizur Rehman, Advocate for State. Date of hearing: 14-12-1992. JUDGMENT Appellant Raees Ahmad has been convicted by the 1st Additional Sessions Judge (Central) Karachi under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to undergo rigorous imprisonment for 10 years, to pay a fine of Rs.5000/- or in default to further undergo rigorous imprisonment for 6 months, and to suffer 10 stripes by judgment dated 16-8-1992. He has challenged his conviction and sentence by the appeal in hand. 2. Aas Muhammad complainant had accused the appellant of committing carnal intercourse against the order of nature with his minor son Akram aged about 8 years on 3-3-1988 at about 1.00 p.m. in the FIR No.90/88 recorded in Police Station New Karachi on 7-3-1988 at 1205 hours. The complainant also accused the appellant for taking his minor son to his house for commission of the said offence. 3. The appellant was arrested on 4-6-1988 and after investigation he was sent up for trial. The learned trial Judge charged the appellant under Section 12 of the Hudood Ordinance and Section 377 PPC to which the appellant pleaded not guilty and claimed trial. 4. The complainant, appearing as P.W.I, deposed that his wife Mst, Kausar came to his place where he worked and informed him that their son Akram had been taken away to his house by the appellant at about 1.00 p.m. and when the boy returned he disclosed that the appellant had committed sodomy with him forcibly after administering him some narcotic. The witness further disclosed that the boy had been taken to private Hospital for treatment. Msf.Kausar, appearing as P.W.3, corroborated the aforesaid testimony. The victim of the alleged occurrence Akram, ppearing as P.W.2, stated that on the day of incident at about 4.00 p.m. he was playing outside of his house and the appellant who is his first cousin called him and took him to his house which is adjacent to his house and gave him Biryani and one tablet and asked, him to eat them and then the appellant put off his shalwar and committed unnatural offence with him. The boy further stated that after the incident he went to the house and informed his mother who took him to Rashidullah Hospital where he remained under treatment for about 3 days. The boy admitted in cross-examination that he was not unconscious after taking Biryani and the tablet. P.W.5 Mst. Haseena Begum, sister of mother of the boy, was present in his house and she took the boy to a hospital near the house. She stated that she had noticed blood and semen on the clothes of Akram. 5. P.W.4 Dr. Aftab Azizi examined Akram on 7-3-1988 at about 1610 hours and on local examination his anus was found patulous and congestion was present around the anus. The doctor also found a tear half inch in length with red inflamed margins at 12,0 clock position which was tender on touch. The doctor also found tenderness on separation of buttock. The doctor gave the opinion that the boy had been subjected to the act of sexual intercourse. However, the doctor did not find any mark of injury all over the body surface. 6. P.W.6 Muhammad Suleman was associated with the investigation. He stated that he was called by the complainant to his house on the day of incident, and the investigating officer was sitting there. He further stated that in his presence the investigating officer prepared mashirnama of the wardat and the investigating officer secured one chaddar and trouser of the accused. In cross-examination he stated that a police constable had gone to the house of the accused and had brought the clothes of the accused and mashirnama was also prepared in the house of the complainant. This witness further stated that the chaddar was secured from the house of the complainant. This witness had attested the mashirnama. 7. It transpires that the complainant had submitted a written report on 5-3-1988 in the same police station at 2220 hours which was recorded in the daily diary of that police station at serial No.82. A copy of the said report is Ex.24. It discloses that on the said day at about 7.00 p.m. an altercation had taken place between the complainant and the appellant as a result of which the latter had beaten the former nd the cause of that altercation appeared to be that the appellant had allegedly beaten Akram on the said day. 8. The appellant in his statement under Section 342 Cr.P.C. contradicted both the allegations against him. He also made a deposition on oath wherein he said that he had strained relations with his uncle Aas Muhammad complainant over their business and as a result thereof he had been falsely implicated. 9. According to the prosecution case the occurrence took place on the 3rd of ' March and the boy was admitted in a private hospital where he remained under treatment for atleast 3 days and thereafter the report of the occurrence was made in the police station on 7th of March. No explanation has been furnished for a delay of 4 days in making the report in the police station. It is also interesting to note that the complainant made a report in the same police station on 5th of March but no such allegation was disclosed against the appellant therein. The perusal of that report shows that some altercation took place between the complainant and appellant. However, the allegation is that the latter had beaten the son of the complainant. There has been furnished no explanation as to why the incident of sodomy was not disclosed in the report made on 5-3-1988, if. it had actually taken place and why after another 2 days this incident was disclosed for the first time. 10. The appellant is a son of the real brother of the complainant and lives in the house adjacent to his house. There was already bad blood between both the parties about their business. In such a situation if the appellant had really committed the offence for which he has been tried, the complainant would have disclosed it at the first available opportunity. Not only that but he could have disclosed it on the 5th B of March when he had submitted an application to the police station against the appellant. There is not only a delay of 4 days in the disclosure of the occurrence but it has also not been explained as to why it could not be disclosed on the 5th of March when an application had actually been given by the complainant against the appellant in the police station. 11. There is another aspect of the matter. The appellant was charged for committing 2 offences. Abduction of the minor boy under Section 12 of the Hudood Ordinance and the commission of the act of sodomy with him under Section 377 of PPC. Whereas the learned trial Judge convicted and sentenced the appellant only under Section 12 of the Hudood Ordinance, although he was of the opinion that the appellant was guilty of both the offences for which he was charged. The learned counsel for the State contended that the learned trial Judge had convicted and sentenced the appellant for both the offences while on the contrary the learned counsel for the appellant contended that the appellant has not been convicted and sentenced under Section 377 PPC. I have considered this aspect of the matter very anxiously. It is a fact that the appellant was charged for both the offences. However, the learned trial Judge convicted him under Section 12 of the Hudood Ordinance and no conviction was recorded for the offence under Section 377 PPC. It is not open to a court to pass no order on a charge framed against an accused person-because the inference which would follow from not recording a conviction would be that the accused was found not guilty and was acquitted. The failure of the learned trial Judge to record any conviction under Section 377 PPC would clearly disclose that the accused stood acquitted of that offence. Obviously no order can be made in appeal regarding this aspect of the matter because the impugned judgment in so far as it was silent with regard to the charge under Section 377 PPC has not been challenged by the State in any revision or appeal. 12. The house where the boy was allegedly taken by the appellant is adjacent to the house of the complainant and they are close relatives interse, the question of abduction as such does not arise. No sufficient evidence «was brought on the record to prove the allegation of abduction of the minor boy against the appellant. This appeal is, therefore, accepted. The conviction of the appellant is set aside and he is cquitted of the offence for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case. (MBC) (Approved for reporting) Appellant acquitted.

PLJ 1993 FSC 53 PLJ 1993 FSC 53 [Appellate Jurisdiction] Present: Dr. FIDA MUHAMMAD KHAN AND MUHAMMAD ILYAS, JJ MUHAMMAD SHER - Appellant versus THE STATE – Respondent Jail Criminal Appeal No.279/1 of 1992, dismissed on 2-2-1993 (i) Mitigating circumstance Small girl of 5 and a half years — Abduction of and rape committed with — Conviction for — Challenge to -- Contention that since appellant was overpowered by sexual urge, sentences may be suitably reduced — If an unmarried person is overpowered by sexual lust, he should exercise restraint otherwise law must restrain him from playing with honour and chastity of others — He could not be given .licence to ruthlessly ravish girls of tender age — Held: Having been overpowered by sexual urge is not a mitigating circumstance — Appeal dismissed. [Pp.55 & 56] D&E (ii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979) S.10(3)and 11— Small girl of 5 and a half years — Abduction of and rape committed with — Conviction tor — Challenge to — Most important piece of evidence connecting appellant with offences, is evidence of extra-judicial confession made by him before Councillor (PW10) in presence of PW8 - At time of aforesaid confession, victim also identified appellant as person who had subjected her to brutality — Earlier he had committed similar offence with another small girl — Appellant was in habit of catching hold of small girls for satisfying his lust — Held: Only argument against conviction of appellant being without substance, his conviction on both counts is upheld. [Pp.54 £55)A,B&C Mr. Muhammad Axlani Unx, Advocate for Appellant. Mr. Sajjtui Ajzal Cheeinu, Advocate for State. Date of hearing 2-2-1993. JUDGMENT Muhammad llyas, J. — This is jail appeal by Muhammad Sher son of Said Muhammad, caste Gujjar, aged 32 years, resident of Sadiqabad, Rawalpindi, against judgment, dated the 4th August, 1992, passed by the Sessions Judge, Rawalpindi, whereby he convicted him under Section i I and sub-section (3) of Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The learned Sessions Judge awarded him the sentence of life imprisonment, whipping by twenty stripes and a fine of Rs. lO.OOO/- or, in default, to undergo rigorous imprisonment for a further period of two years, for offence punishable under section 11 of the said Ordinance. He also sentenced him to rigorous imprisonment for twenty five years and whipping by thirty stripes for offence punishable under sub-section (3) of Section 10 of the above Ordinance. It was directed by the learned trial Court that the sentences shall run concurrently. The appellant was also allowed benefit of the provisions of Section 382-B of the Code of Criminal Procedure. 2. Prosecution story is that Hasiba Kausar, a minor girl of about 5% years in respect of whom the said offences were committed was a student of class - 1 in M.C. Girls Primary School, Shakrial, which falls within the municipal limits of Rawalpinidi. As her house was near the school, she used to go home during recess for taking meals. On 5th March, 1990, after recess when she was returning from her house to the school, the appellant took her to another house which was under construction and forcibly raped her on the upper floor of the said house. Thereafter, she was thrown outside the school. The unfortunate girl was spotted by the Head Mistress of the school when she was unconscious and profusely bleeding. Intimation in this behalf was conveyed by the Head Mistress to the mother of the girl whereupon her mother came to her daughter and took her to the General Hospital of Rawalpindi. There, she was medically examined and also given treatment. Father of the girl, who was employed at Kahuta, came into contact with her mother when the girl was being taken to the Hospital. He reported the matter at the Police Station Sadiqabad, Rawalpindi , by making an application, Ex.PA , whereupon formal FIR, Ex.PA/3, was recorded. 3. Investigation of the case was in progress when the appellant confessed before a Councillor of Shakrial and others that he had committed rape with the girl. At that time, she also identified him as the person who had done the brutal act with her. On the conclusion of investigation, the appellant was sent .up before the learned Sessions Judge to face trial which resulted in the judgment under appeal. 4. During his submission, it was frankly conceded by learned counsel for the appellant that Hasiba Kausar, who was a girl of very tender age, had been ravished in a cruel manner and added that whosoever was responsible for perpetrating this crime deserved to be severely dealt with. His argument, however, was that the prosecution had not been able to establish, beyond reasonable doubt, that it was the appellant who had committed the offences involved in this case. We would, therefore, confine our examination only to the identity of the appellant. 5. In our opinion, most important piece of evidence connecting the appellan with the .offences, to which this case relates, is the evidence of extra-judicia confession. This confession was made by the appellant before a Councillor, Azhai Iqbal Satti (P.W.lO) in the presence of Altaf Hussain (P.W.8). At the time of tht aforesaid confession, Hasiba Kausar (P.W.9) also identified the appellant as thi person who had subjected her to brutality. Earlier, a similar occurrence had taken place in respect of another student, namely, Nabila. Her brother Muhammad Naheed appeared as P. W.I 3 and deposed that when the appellant made the said confession Nabila identified the appellant as the person who had ravished her also. I 6. Learned counsel for the appellant did not find any fault with the evidence of j Azhar Iqbal Satti and Altaf Hussain. We are, therefore, satisfied that the appellant j had confessed his guilt qua Has'iba Kausar. The. appellant was also identified by asiba Kausar at the time of extra-judicial confession as well as before the learned trial Court as the cruel person who had forcibly subjected her to sexual intercourse. Nabila too had said that she had been Taped by -the appellant earlier. We are, therefore, convinced that the appellant was in the habit of catching hold of small irls for satisfying his sexttal lust and this time Hasiba Kausar fell prey to his nefarious designs. Accordingly, we have no hesitation in repelling the plea ofi learned counsel for the appellant with regard to identity of the appellant. 7. Since the only argument raised by the learned counsel for the appellant against the conviction of the appellant is without substance, we uphold his conviction on both counts, 8. As for the sentence, it was submitted by the learned counsel for the| appellant -that since the appellant was over powered by sexual urge at the time ofi the commission of the offences, the sentences imposed on him may be suitably reduced. We, however, do not consider it as a mitigating circumstance. According to the teachings of Islam, in case any person has become a major, he should get married and if he is unable to do so, he should remain chaste and resort ! to fasting. Quranic injunction in this regard reads as follows: - 9. (Let those who find not the wherewithal tor, marriage, keep themselves chaste, until God gives them means): Al-Nur 24:33. In this connection, saying of the Holy Prophet (may peace be upon him is fo the following effect: - (O! Young people! whoever among you is able to marry, should marry, and whoever is not able to marry is recommended to fast, as fasting diminishes his sex ual power): The Translation of the Meanings of Sahih al-Bukhari, Vol. VII, Page 3. jlf anunmarried „person is over-powered by sexual lust, he should exercise 'restraint, as ordained above, and if he cannot restrain himself, then the law must ' restrain him from playing with the honour and chastity of others. If the appellant had a sex problem and could not get over it in a decent manner, this did not give him a licence to ruthlessly, ravish girls of tender age. As noted in the beginning, it i was maintained by learned counsel tor the appellant as well that whosoever had committed the. heinous offences involved in this case deserved to be dealt with ! drastically. We are also not oblivious of the fact that horrible incidents like the one involved in this case are being frequently reported in the Press. All this calls for deterrent action against those who, though created as human beings, act in inhuman manner and commit such brutal and shameful acts as may not even he indulged in by beasts. For these reasons, we decline to reduce the sentences inflicted on the appellant. 9. To our mind, the judgment under challenge (Joes not suffer from any infirmity and there is no justification tor interfering with it. in any respect. This appeal, is accordingly, dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 FSC 56 PLJ 1993 FSC 56 (Revisiona! Jurisdiction) Present: DR. TANZILUR RAHMAN.CJ 1QBAL --- Petitioner THE STATE -- Respondent Jail Criminal Appeal No.56/I of 1992, partly accepted on 21-10-1992. Prohibition (Enforcement of Hadd) Order, 1979 (P.O 4 of 1979) Art. 3 & 4 — Ten grams of heroin - Recovery of — Conviction tor — Challenge to — Conviction is solely based on admission of petitioner on earliest opportunity — Petitioner cannot be convicted under both Articles — Either he can be convicted under Article 3 or under Article 4 of Prohibition Order -- Held: Conviction under Article 4 only for having been found in possession of ten grams of heroin, is upheld -- Conviction and sentences under Article 3 set aside. fPp. 57 & 58|A&B 1992SCMR 108;r/. Nemo for Appellant. Mr. Muhammad Aslam Unx, Advocate for State. Date of hearing: 21-10-992. Dr. Tanzilur Rahman, Chief Justice.— This Jail Criminal Revision has been filed by the petitioner, who has been convicted under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, (hereinafter referred to as "the said Order"), having been found in possession of ten grams of heroin, which was allegedly recovered from him on 1-10-1987 and consequently, a case vide F.I.R No.735/87, P.S. Mingora, was registered against him. After necessary investigation the challan under Articles 3/4 of the said Order was submitted to the Court of learned Magistrate -1st Class, who was pleased to convict him under Article 3 of the said Order and sentenced him to one year's R.I. and also to pay a Fine of Rs.3,000/-. He was further convicted under Article 4 of the said Order and sentenced to one year's R.I. and also to pay a fine of Rs.2,000/- in default of payment of fine the petitioner/convict was made liable.to undergo further three months' S.I. 2. The petitioner/convict challenged the said conviction by appeal before the then learned Sessions Judge (Mr. Said Maroof Khan), Swat, who by his order dated 6-10-1991, accepted the appeal, set aside the conviction and remanded the case back to the trial Magistrate for fresh decision. After remand the petitioner/convict was convicted and sentenced, by the learned MIC by his order dated 25-1-1992, against which the petitioner/convict, preferred an appeal, which came up for hearing before the learned Sessions Judge, Swat at Saido Sharif (Mr. Abdur Rahman Khan). The learned Sessions Judge while dismissing the appeal by his judgment dated 25-8-1992, against which the above revision has bejjn preferred, observed that:- " Keeping in view the plea of guilty of the accused in the formal charge as well as statement of the accused recorded under Section 342 Cr. P.C., it does not reveal that the trial Court has committed any illegality and so keeping in view the quantity of the contraband heroin weighing 10 grams the conviction and sentence of the accused seems genuine and proper. Consequently, the appeal being without suBstance is dismissed." It is evident that the conviction is solely based on admission of the petitioner at the earliest opportunity, for which he deserved leniency. 3. However, in the facts and circumstances of the case, I am of the view that' the petitioner cannot be convicted under both Articles. Either he can be convicted under Article 3 or under Article 4 of the said Order. It is, therefore, ordered that A the conviction is upheld under Article 4 only for having been found in possession of ten grams of heroin. The conviction under Article 3 is set aside. Reliance isi placed on the case of Muhammad Ayuh vs. The State (1992 SCMR 108). 4. As regards the sentence, the petitioner has been sentenced to one year R.I only under Article 4 with a fine of Rs.2,000/- and in default to undergo further simple imprisonment for three months more. 5. In result, the conviction under Article 3 and sentences passed thereon are set aside. However, the sentence of one year's R.I. and tine of Rs.2,0007- (two thousand) and for non-payment simple imprisonment tor three months under Article 4 is maintained. 6. With the above modification in sentence, the revision petition is accepted. (MBC) (Approved tor reporting) Appeal partly accepted.

PLJ 1993 FSC 58 PLJ 1993 FSC 58 [Appellate Jurisdiction) Present: DR. FIDA MUHAMMAD KHAN, MIR HAZAR KHAN KHOSO AND NAZIR AHMAD BHATTI, JJ MUHAMMAD ALI - Appellant versus THE STATE - Respondent Jail Criminal Appeal No.213/1 of 1992, accepted on 2-11-1992. (i) Abduction Abduction, zina and murder of a small girl -- Offences of — Conviction for — Challenge to — FIR discloses that PW9 had seen girl being taken by appellant on a bicycle and said PW confirmed this circumstance in his statement before court ~ However, his statement under Section 161 Cr.PC did hot disclose this circumstance — Bicycle was also not found form place of occurrence — This witness also did not express purpose for which he was present at Am Morr -- At least, he appeared to be a chance witness — Held: Prosecution could not prove offence of abduction of Mst. Abida by appellant. [P.61]A (ii) Criminal Trial Abduction, Zina and murder of a small girl ~ Offences of — Conviction tor - Challenge to — Death could occur by strangulation only if pressure was applied on front side of neck whereby girl' could not breathe — It is not understandable as to how pressure only on left side of neck resulted in suffocation — Death was not caused as a result of strangulation — Injuries on dead body were actually postmortem staining and not injuries caused by appellant — Death of deceased occurred due to drowning — Wrinkles which appeared on dead body showed that it (dead body) had remained immersed in water for a sufficinetly long time — Men may He but circumstances do not — Held: Fact that eyes and mouth of deceased were open, water was coming out from mouth and vital organs were also found congested, showed that there could be no other cause of death except drowning — Appeal accepted and appellant acquitted. [Pp. 62,63,64, & 65]C,D,E&F (iii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979) S.10 (3) — Abduction, zina and murder of a small girl — Offences of -- Conviction for — Challenge to -- FIR does not disclose commission of offence of Zina biljabr by appellant -- Doctor admitted that he did not examine private parts of deceased to find out if she was subjected to sexual intercourse or not — Three alleged eye witnesses had deposed that when they saw deceased and appellant, latter was committing zina with former, but there is no expert opinion on this point — This seems to be an after thought — There is no actual proof of penetration — Report of chemical examiner cannot be taken as tool proof testimony of sexual intercourse without any proof of actual penetration — Moreover, swabs were sent for chemical analysis after 11/12 days — Held: Prosecution had also failed to bring any evidence to prove that deceased was subjected to sexual intercourse. Mr. Muhammad Aslant Un.s, Advocate for Appellant. Mr. Javed Aziz Sindhu, Advocate for State. Date of hearing: 2-11-1992. JUDGMENT Nazir Ahmad Bhatti, J. — Deceased mm. Abida daughter of Ghulam Rasool complainant, aged about 4/5 year, went out of her house at about 1400 hours on 8-12-1991 and did not return back whereupon the complainant started searching her. In the meantime he was met by Arshad Aziz who informed him that a shortwhile earlier he had seen Mst. Abida being taken by Muhammad Ali appellant herein on a cycle towards the Ara Morr Road. Thereupon the complainant accompanied by the said Arshad Aziz and Muhammad Shafi went towards the said road. In the way at about 1600 hours they were also met by Altaf ur Rehamn Tariq Lambardar. When they reached near the said road they heard the cries of Mst. Abida from a cotton field belonging to the said Altaf-ur-Rahman Tariq. They rushed to the spot and saw the appellant Muhammad Ali pressing the neck of the girl with his two hands. On seeing the complainant party the appellant threw the girl in the nearby water-course and ran away. The complainant party brought out the girl from the water course who expired immediately thereafter. The complainant went to Police Station Shahkot district Sahiwal and recorded F.I.R. No.238/91 on the same day at about 7.30 P.M. 2. Deceased Mst. Abida was medically examined by P.W.3 Dr. Muhammad Mqabool Iqbal on 9-12-1991 at 11.00 A.M. when he conducted post mortem examination of the dead body. The skin of hands and feet of the deceased was wrinkled, hands were clenched, mouth and eyes were half opened and water dribbled from the mouth, rigor mortis was present all over the body, post mortem staining was present on the back. The doctor also found the followinng injuries on the dead body:- 1) "A bluish bruise 2 cm x 1.5 with swelling 4.5 cm x 4 around it on the middle of fore-head. 2) Redness on the right side of face. Reddish bruise 4.5 cm x 2 cm just below the right mandible on its middle. 3) Redish bruise 3 cm x 2 cm on the left mendible on its middle. 4) Abraded area 6 cm x 2 cm on the left side of the neck. 5) Abrasion 2 cm x 1.5 cm below the left elbow. 6) Redish bruise 7 cm x 3 cm with abrasion 4 cm x 1.5 cm on the left lower abdomen. 7) Redish bruise 7 cm x 6 cm with abrasion 2 cm x 1 cm on the right lower abdomen. 9) Redness on whole upper halt ot right thigh. 10) Swelling 4 cm x 3 cm on'the right side ot parienal region. The doctor also found memberanes of the brain, pleura, larynx, tracheae, right and left lungs, peritoneumn, mouth, pharynx, oesophagus and diaphram, liver and kidney congested. Stomach was full of water. According to the opinion of the doctor injury No.5 was fatal and grievous and was caused by hlunt weapon. Rest of the injuries were simple in nature and caused by blunt weapon. All the injuries were antemorlem in nature. According to the opinion of the doctor death occurred due to asphyxia i.e. throttling and injury No.5 was sufficient to cause death in the ordinary course of nature. The doctor also took three vaginal swabs for chemical analysis and the report of the latter showed the presence of semen on the swabs. The doctor further stated that the duration between injuries and death was within about five minutes and between death and post mortem examination was about 18- 20 hours. In cross-examination the doctor admitted that death by asphyxia may be the result of smothering throttling or drowning and it was a case of throttling . In his view the hand was a kind of blunt weapon and the injuries on the dead body may be the result of hand heating or by stick. The doctor admitted that he had not examined the labia minora, labia majora, uterus, vagina or hymen of the dead body. The doctor also stated that he could not say whether the water found in the stomach of the deceased had gone inside the body before or after death. 3. The appellant was arrested on 12-12-1991 and after the investigation he was sent up for trial before the Additional Sessions Judge, Sahiwal who charged him under Sections 11 and 10(3) of the Offences of Zina (Enforcement of Hudood) Ordinance No.Vll on 1979, and Section 302 PPC to which the appellant pleaded riiBfci not guilty and claimed trial. Besides the other testimony of formal witnesses, three persons, namely P.W.8 Altaf-ur-Rehman Tariq, P.W.9 Arshad Aziz and P.W.10 Ghulam Rasool complainant, were examined as alleged eye-witnesses of the occurrence. After the conclusion of the trial the learned Additional Sessions Judge convicted the appellant under Sections 11 and 10(3) of Hudood Ordinance No.Vll of 1979 as also under Section 302 PPC. For the offence under Section 11 of Hudood Ordinance No. VII of 1979 the appellant was sentenced to imprisonment for life, to pay a fine of Rs.5,000/-/- or in default to further undergo rigorous imprisonment for one year and to suffer 20 stripes. For the offence under Section 10(3) of Hudood Ordinance No. VII of 1979 the appellant was sentenced to undergo rigorous imprisonment for 15 years and to suffer 20 stripes and for the offence under Section 302 PPC the appellant was sentenced to death and to pay a fine of Rs.5000/- or in default to further undergo rigorous imprisonment for one year. The learned Additional Sessions Judge also Ordered that half of the fine, if realised, was to be paid to the legal heirs of the deceased Mst. Abida. The appellant has challenged his conviction and sentence by the appeal in hand sent from jail. The learned trial Judge also forwarded a murder reference No.4/1/1992. Judgment in the appeal in hand will also dispose of the murder reference. 4. The appellant was charged for three offences, for abduction of Mst. Abida, committing zina-bil-jabr with her and then committing her murder by strangulation. We shall now see what evidence had been produced for the proof of each of the offences. In so far as the offence of abduction of Mst. Abida is concerned, the F.I.R discloses that P.W.9 Arshad Aziz had seen the girl being taken by the appellant on a bicycle towards Ara Morr and on inquiry he so: informed the complainant. The said Arshad Aziz, appearing as P.W.9, confirmed the aforesaid circumstance. However, when he was examined under Section 161 Cr.P.C. he did not disclose that the appellant was taking Mst. Abida on a bicycle. Moreover, bicycle.was also not found from the place of occurrence. Although this witness had deposed during the trial that he had seen the appellant taking away Mst. Abida on a bicycle but his earlier statement before the police did not disclose the circumstance in definite and clear words. He appears to have made a casual statement to the investigating officer under Section 161 Cr.P.C. His words did not give the impression that Mst. Abida was being taken away by the appellant on a bicycle. Moreover, this witness has not deposed as for what purpose he was present at Ara Morr. At the best he appeared to be a chance witness. Except P.W.9 there is no other evidence on the record to show if Mst. Abida deceased was being taken away by the appellant. The testimony of P.W.9 becomes further: ^doubtful for the reasons which we shall disclose in a later part of this judgment.! After a careful analysis of the testimony of this witness we have come to thej conclusion that the State could not prove the offence of abduction of Mst. Abida by' the appellant. 5. The next point for consideration is whether Mst. Ahida was subjected to zina-bil-jabr or not. The F.I.R does not disclose this offence against the appellant. The doctor admitted that he had not examined the private parts of Mst. Abida to jfind out if she was subjected to sexual intercourse or not. The doctor did not iexamine labia minora and labia majora of the deceased nor her vagina to find out if jthe hymen was torn or whether the vagina was lax or tight. The three alleged eyewitesses of the occurrence had deposed that when they saw Mst. Abida and the appellant for the first time, the latter was committing zina with the former. But there is no expert opinion on the record to show that Mst. Abida was subjected to sexual intercourse. Moreover the F.I.R does not disclose this offence against the appellant. This seems to be an after thought with the complainant and the alleged eye witnesses of the occurrence. The first available version of the alleged offence did not accuse the appellant of the rape of Mst. Abida. Moreover there was no actual proof of penetration. The report of Chemical Analyst cannot be taken as a fool proof testimony of sexual intercourse without any proof of actual penetration. Since the dead body was not examined to find out that penetration had actually •taken place the presence of semen on the swabs would prove nothing. Moreover, ! the swabs were sent for chemical analysis after 11/12 days. This inordinate delay | would also make the presence of semen on the swabs very doubtful. The State had also failed to bring any evidence worth the name to prove that Mst. Abida was subjected to sexual intercourse. 6. The third allegation against the appellant was that on seeing the complainant party he first tried to strangulate Mst. Abida and then threw her in the water - course and then ran away. According to the opinion of the doctor injury No.5 was fatal and it was the result of throttling. In cross examination the doctor also admitted that injury No.5 could be caused by throttling, smothering, or drowning. The minute analysis of injury No.5 would reveal that.this injury was present on the left side of the neck and measured 6 cm x 2 cm which would show that some pressure was applied on the left side of the neck of Mst. Abida. There was neither any mark of pressure nor of injury on the front side of neck. This would show that if any pressure was applied it was not on the front side of the neck but towards the .left. We have considered this aspect of the matter very seriously and we have come to the conclusion that the non-presence of any marks of violence or of pressing on the front side of neck would show that there was no effort on the part of the appellant to press the front side of neck . It is to be noted that death could occur by strangulation only if pressure was applied on the front side of the neck whereby the girl could not breathe. Moreover, it could not be definitely gathered from the testimony of the doctor that the injury on the left side of the neck was a result of pressure applied by the appellant by his hands. Normally if pressure is applied on the neck by hands, it must show signs on the front side of the neck and both right I and left side whereas this injury was found only on the left side of the neck. We! fail to comprehend as (to) how pressure only on the left side of the neck resulted in I suffocation. We are of the opinion that death due to suffocation could only occur j when pressure was applied to the neck from the front. We have also taken into • consideration the opinion of the doctor expressed in cross-examination that death | could have occurred by throttling, smothering or drowning. We have come to the j conclusion that death was not caused as a result of strangulation. It could be thej result of drowning. In this connection we had the benefit of consulting the book' "Medical Jurisprudence and Taxicology (Pakistan Edition) by Modi". After post mortem of the dead body the doctor had found that eyes and mouth of Mat. Abida were half Opened and stomach was full of water and some water was coming out from the mouth. Modi has stated in the aforesaid book at Page 173 that "drowning is a form of death in which the atmospheric air is prevented from entering the lung s by submersion of the body on water or other fluid medium." The ocular testimony would also show that on seeing the complainant party the appellant had thrown Mst. Abida in the water-course and the witnesses had recovered her therefrom. The presence of sufficient water in the stomach would also prove that Mst. Abida had inhaled a lot of water. At page 177 of the same book, Modi has further stated that "a fine white lathery froth or foam, rarely tinged with blood, is seen at the mouth and nostrils and if not visible, it may appear on compression of the chest and this is regarded as a diagnostic sign of drowning." The doctor had stated that water was also coming out of the mouth of the dead body when he examined it. It was also stated by the doctor that all the vital parts of the body of Mst. Abida were found congested. At page 179 of his book Mr. Modi has again mentioned that "the mucous of membrane of the larynx, trachea and bronchial tubes are usually congested when death takes place due to drowning". This opinion is confirmed by the post mortem report. The doctor had also found many injuries on the dead body. According to him injury No.5 was fatal and grievous and was caused by blunt weapon and rest of the injuries were simplejn nature and caused by blunt weapon. On the contrary Mr. Modi was of the opinion (at page 130 of the said book) that " post mortem lividity or staining has sometimes been mistaken for bruises caused by violence during life, and consequently innocent persons have been prosecuted for murder, but acquitted afterwards, when the charge could not be proved". We have also very seriously considered this aspect of the matter and we| have come to the conclusion that the injuries which were noted by the doctor on the \ dead body of Mst. Abida were not a result of any force applied by the appellant but they were actually post mortem staining. We are, therefore of the opinion that the injuries on the dead body were actually post mortem staining and not injuries; caused by the appellant. There is yet another aspect of the matter which would also help in arriving at the conclusion that death of Mat. Abida occurred due to' drowning. :The skin of Mst. Abida was found wrinkled. Dr. S. Siddiq Hussain in his book 'Medical Jurisprudence and Toxicology (16th Edition - Page 150) notes that "wrinkles appear on the dead body when it has remained in water for 10-12 or more hours." The same is the opinion of Mr. Modi at page 178 of his book. We are, therefore, of the opinion that the dead body of Mst. Ahida had remained in the water for a very long time before it was discovered. The doctor could not definitely express as (to) whether water had been inhaled by Mst. Abida before or after her i death. We feel that the doctor was not sufficiently experienced because no body can have respiration after death and inhaling of air or water only takes place when lone is alive. . 7. There is yet another aspect of the matter which has made the charge of the : murder against the appellant more doubtful. All the three eye witnesses had stated that they had immediately picked up Mst. Abida from the water-course and at that time she was alive and thereafter she breathed her last. Although the ocular testimony would appear to be doubtful on this charge as well but if it is taken into consideration it will show that the girl was alive when she was brought out from the water-course. As such the allegation that she died of strangulation stands disproved. We have also taken into consideration the fact that wrinkles had appeared on the dead body which showed that it had remained immersed in the water for a sufficient long time whereby wrinkles had started appearing on it. Men may lie but circumstances do not. The most important circumstance of the occurrence which came to light is the presence of water in the stomach of Mst. Abida which proved that she had died of drowning and not as a result of any violence on the part of the appellant. The presence of wrinkles on the skin also showed that the dead body had remained in the water tor more than 10-12 hours. The fact that eyes and mouth of the deceased were open and water was coming out j from the mouth and vital organs were also found congested showed that there could , be no other cause of death except drowning. As such the ocular testimony is belied ;by the circumstances. Even if any reliance is placed on the ocular testimony it : would still show that Mst. Abida did not die as a result of alleged strangulation of her neck by the appellant because when she was brought out from the water she was still alive, and no actual harm or damage was caused to Mst. Abida by any action of the appellant. 8. The ocular testimony would suggest that when the appellant saw the complainant party running towards him he first tried to throttle the neck of Mst. Abida with his hands and then he threw her in the water-course and ran away. This appears to be improbable. The appellant was only a youngster and his age was about 14 years when the occurrence took place. It is not expected of a boy of 14 years that he would try to strangulate the victim as he would be so dare-devil sensible at that time. The first impulse of a boy of 14 years of age in such a situation would be to run away and to make good his escape. It is also very astonishing that a boy of such minor age could not be captured by three persons who were following him. The evidence concerning the offence of murder was of such a doubtful character that the third offence also could not be proved against the appellant. It was an unwitnessed occurrence. The presence of wrinkles showed that the dead body of Mst. Abida had remained in water for a very long time before it was discovered. The allegation that she was seen alive with the appellant between 1400 to 1600 hours was disproved. She had died of drowning long before the time she was allegedly seen by the eye witnesses in the company of the appellant. 9. The net result of the above discussion is that the State had failed to prove any of the three charges against the appellant. There was no basis for conviction of the appellant for any of the offences. He is, therefore, acquitted of the offences for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case. The murder reference is not confirmed. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 FSC 65 [Appellate Jurisdiction] PLJ 1993 FSC 65 [Appellate Jurisdiction] Present: mir hazar khan khoso, CJ and muhammad ilyas, J SUBBAGO-Appellant versus THE STATE-Respondent Jail Criminal Appeal No.68/I of 1993, dismissed on 14.4.1993 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- —-S.7 read with Section 10(3)~Zinabil Jabr-Ofknce of-Conviction for- Challenge to—Whether offence fell within ambit of Section 7-Question of~ Contentiott that at time of commission of offence, appellant was not adult, therefore, offence fell in Section 7 and not in Section 10(3)--This plea was not raised when charge was framed and he did not cross-examine PWs with reference to his age at relevant time-There is no birth certificate or any other document showing that appellant was 11 years old at time of committing Zina-bil-Jabr— Section 7 is in nature of exception to Section 10(3) and it was for appellant- to adduce evidence in order to bring his case within purview of Section 7—Held: Section 7 was not attracted to this case and appellant was rightly convicted under Section 10(3) of Ordinance-Appeal dismissed. [Pp.67,68&69]A,B,C,D&E Ch. Muhammad Akram, Advocate for Appellant. Mr. Muhammad Aslam Uns, Advocate for State. Date of hearing: 14.4.1993. judgment Muhammad: Ilyas, J.~This appeal has been preferred by Subbago against judgment, dated the 26th January, 1993, passed by the Sessions Judge, Nasirabad at Dera Allah Yar, whereby he convicted him under sub-section (3) of Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the said Ordinance, and sentenced him to suffer rigorous imprisonment for twenty years and to whipping by thirty stripes. 2. It is alleged that on 15th March, 1992, at 9.00 a.m., when the complainant, Shahzada (P.W.2) and his father had gone to Goth Muhammad Panah Omrani for doing labour, the appellant committed zina-bil-jabr with the complainant's sister Mst . Naji (P.W.I), who was then aged 9 years. On his coming back to the house when she informed the complainant about the brutal act committed by the appellant, he reported the matter to the police. On this, F.I.R., Ex.PA, was recorded. Mst. Naji was medically examined by Lady Doctor Zahra Baloch (P.W.3), who found her to be of 7 years. After examination of Mst. Naji the Lady Doctor recorded following observations in her certificate, Ex.PB:- "Her age is about 7 years and was too much fearful condition. She was not physically mature. There is redness and swelling on right side of face. Her right eye was congested and red spots on conjunctive and also corneal ulcer due to external Trama. She was having temperature 102F° at the time of examination. She was without shalwar, wrapped in Sindhi Rhilly (locally made). Her both thighs were stained with blood on medial side of thighs. There were also blood gaining on the different parts of buttocks. Blood staining was also found on the shirt. There were multiple bruises on the right side of chest. The fresh blood was oozing per vagina. Specific examination. Female genitalia is not fully developed as she has not reached age of puberty. Hymen is not intact. Fresh blood was coming from superficial of deed vaginal tears due to forceful act of intercourse and full penetration. There is vaginal tear upto periunal region about 1" x 1/6" deep muscles. Opinion. All above signs seem to be forceful intercourse and full penetration". 3. The case- was investigated by a Tehsildar, Fateh Muhammad (P.W.4). After necessary investigation, the said Tehsildar sent up the accused before the learned Sessions Judge to face trial on charge under sub-section (3) of Section 10 of the said Ordinance. 4. The prosecution examined four witnesses, referred to above, for proving its case. 5. In his statement, under Section 342 of the Code of Criminal Procedure, the appellant denied having committed the offence attributed to him. According to him, he was involved in this case due to enmity. He examined two witnesses in defence but did not himself make a statement on oath. The defence witnesses, namely, Khuda Bux (D.W.I) and Pahlewan (D.W.2) simply said that the accused was arrested when he was with them. 6. Relying on the prosecution evidence, it was held by the learned Sessions Judge that the charge levelled against the appellant had been established. He, therefore, convicted and sentenced him as stated at the out set. 7. It was not disputed by learned counsel for the appellant that zina-bil-jabr had been committed by the appellant with Mst. Naji. It was, however, contended by him that the offence committed by him fell under Section 7 of the said Ordinance and not under sub-section (3) of Section 10 thereof because, according to him (learned counsel), the appellant was not adult at the time of commission of the offence. He maintained that the appellant was 11 years old at the time of occurrence. 8. Plea raised by learned counsel for the appellant that appellant was not adult at the time of the commission of the offence is not only an after thought but also without substance. When charge under sub-section (3) of Section 10 of the said Ordinance was framed against him, he merely denied the charge and did not say that the case did not come within the mischief of the said provisions of law as he was not adult at the time when the incident had occurred. Then, he did not cross examine the prosecution witnesses with reference to his age at the time B when zina-bil-jabr was allegedly committed by him, In his statement, under Section 342 of the Code of Criminal Procedure, also he did not urge that he was not adult when the occurrence had taken place. His defence witnesses, too, did not say anything regarding his age. There is no birth certificate or any other document showing that the appellant was 11 years old at the time of committing zina-bil-jabr with Mst. Naji. According to Lady Doctor Zahra Baloch (P.W.3), who examined Mst. Naji, her hymen was torn and that it was a case of forceful intercourse and full penetration. We feel that this could be done by an adult having lot of vigour and vitality and not by a lad of 11 years. 9. Learned counsel for the appellant has not been able to refer us to any law laying down that in such like cases an accused shall be presumed to be not adult unless evidence to the contrary is produced. If the appellant believed that he was not adult, he should have adopted this line of defence in the very beginning of the trial and produced evidence to substantiate his assertion. This was, however, not done by him. To our mind, Section 7 is in the nature of an exception to sub­ section (3) of Section 10 of the said Ordinance and, therefore, it was for the appellant to adduce evidence in order to bring his case within the purview of Section 7. In taking this view, we are fortified by the provisions of Article 121 of Qanun-e-Shahadat, 1984, which reads as under:-- "121. Burden of proving that case of accused comes within exceptions.- When a person is accused of any offence the burden (of) proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code (Act XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances. Illustrations (a) A, accused of murder, alleges that by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A. (b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A. (c) Section 325 of the Pakistan Penal Code Act (XLV of 1860), provides that whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under Section 325. The burden of proving the circumstances bringing the case under Section 335 lies on A." Our opinion derives strong support from illustration (a) ibid. 10. We would also like to refer to Article 122 of the Qanun-e-Shahadat, 1984, which reads as under:— "122. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person the burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him." Now, the age of the appellant was "especially" within his knowledge. Burden of proving that he was not adult at the time of commission of offence was, therefore, on him, but he did not make a mention in this regard much less bringing convincing evidence on the record to demonstrate that he was not adult at the time of committing zina-bil-jabr with Mst. Naji. 11. In view of the above discussion, we are not inclined to accept the belated and bald plea of learned counsel for the appellant that the appellant was not adult, when, as admitted by the learned counsel, zina-bil-jabr was committed by him with Mst. Naji. We, therefore, hold that Section 7 of the said Ordinance as not attracted to this case and the appellant was rightly convicted under sub-section (3) of Section 10 thereof. 12. As for sentence, since the appellant ravished a small girl in a cruel manner he deserved the sentences awarded to him. 13. Resultantly, judgment of the learned Sessions Judge is maintained in all respects and this appeal is, accordingly, dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 FSC 69 PLJ 1993 FSC 69 [Appellate Jurisdiction] Present: DR. FlDA MUHAMMAD KHAN AND MUHAMMAD ILYAS, JJ ABDUL HAMEED and another-Appellants versus THE STATE-Respondent Criminal Appeal No. 212/L of 1992, accepted on 18.4.1993 (i) Benefit of doubt- —-Offence under Section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979--Conviction for-Challenge to—Factor of identity of appellants by victim has created doubt and her statement regarding her guess in respect of Manzoor and Murtaza as offenders, ha's made involvement of appellants highly doubtful—Her silence during period for which she was forcibly taken from Dhari to place of occurrence, shows that either she was consenting party or incident did not take place as stated by prosecution-Had witnesses actually seen occurrence, they should have succeeded in catching hold of at least one of appellants-Held: Keeping all this in view, it is doubtful that persons named in FIR as eye-witnesses had witnessed incident. [Pp.72&73]A,B,C&D (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 537 read with Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Section lQ(3)-Zina-bil-Jabr--Offence of-Conviction for-Challenge to- Whether wrong mention of month in challan is curable under Section 537-- Question of-In charge, month of occurrence was wrongly mentioned as April instead of August due to typographical error—It did not cause any prejudice to appellants-Held: Mistake by itself, does not warrant setting aside of conviction and sentences awarded to appellants. [P.75]H (Hi) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- —S. 10(3)~Z//ia-fe//-/fl&/'—Offence of~Conviction for-Challenge to-There is considerable delay in making report to police-Delay in reporting matter to police indicates that complainant party took time to decide as to who should be saddled with responsibility for occurrence because according to one version, victim was raped by Manzoor and Murtaza and not by appellants-Out of three eye-witnesses cited in FIR, one has not supported prosecution case, other has not been examined and one who is brother of victim and complainant, has appeared to support prosecution case-His statement is of little avail to prosecution-Prosecutrix was not sure about identity of culprits-Held: Only statement of prosecutrix in this case, does not justify conviction of appellants- Appellants acquitted. [Pp.73,74&75]E,F,G,J&K Mr. Muhammad Saleem Akhtar, Advocate for Appellants. Ch. Muhammad Ibrahim, Advocate for State. Date of hearing: 22.2.1993. judgment Muhammad Ilyas, J.-Abdul Hameed and Nadeem have preferred this appeal against judgment, dated the 4th May, 1992, passed by Mehr Mumtaz Hussain Lali, Additional Sessions Judge, Faisalabad, whereby he convicted them under sub-section(3) of Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the said Ordinance, and sentenced each of them to undergo rigorous imprisonment for fifteen years and to whipping by thirty stripes, on the charge of subjecting Mst Jannat Bibi (P.W. 3) to •zina-bil-jabr. 2. Prosecution case is that on 23rd August, 1991, at about 1.30 p.m., Mst Jannat Bibi was present at a Dhari in the area of Chak No. 68/RB when the appellants dragged her to a nearby field in which sugarcane crop was growing and forcibly committed zina with her. On hearing her hue and cry, Anwarul Haq (P.W. 2), Naseer (not examined) and Asghar AH (D.W.I) reached the place of occurrence and saw that Abdul Hameed appellant was holding the hands of Mst. Jannat Bibi while Nadeem appellant was committing zina-bil-jabr with her. On seeing the witnesses, the appellants made good their escape. The said witnesses then brought Mst. Jannat Bibi to the Dhari when she told them that the appellants had committed Zina-bil-jabr with her. On the following day, the incident was reported by Anwarul Haq (P.W.2), who is brother of Mst. Jannat Bibi, at the Police Station Khurrianwala, District Faisalabad, whereupon formal FIR, Ex.PC, was drawn up. On the same day, namely, 24th August, 1991, Dr. Navida Rashid (P.W.4) examined Mst. Jannat Bibi and observed as follows:- "1. Breasts atrophied. 2. Axillary hair, pubic hair are scanty. 3. No mark of violence on other parts of body. 4. Hymen was torn, tears were fresh all around orifice, which were bleeding profusely. 5. Vagina admitted one finger tightly on examination." It was also stated by the lady doctor in her medico legal report, Ex.PE, that Mst. Jannat Bibi was "extremely tender and a tear was present on posterior vaginal wall and vagina was full of clots." She took two vaginal swabs for examination by Chemical Examiner, Lahore. It was opined by the Chemical Examiner that the vaginal swabs were stained with semen. His report in this regard is Ex.PG. 3. P.W.I Dr. Muhammad Imtiaz Rubbani, examined the appellants and stated that they were fit to commit sexual intercourse. His reports in the matter are Exs .PA and PB. 4. After necessary investigation, the appellants were sent up to face trial. They were charged under Section 11 and sub-section (3) of Section 10 of the said Ordinance, but they did not plead guilty and claimed to be tried. 5. The prosecution produced as many as six witnesses to prove its case. Thereafter, in their statements under Section 342 of the Code of Criminal Procedure, the appellants pleaded that the prosecution version regarding commission of zina-bil-jabr by them was not correct. Abdul Hameed gave the following reason for his involvement in this case:- "This case has been made out against-me due to party Baradari faction in the village. Mst. Jannat Bibi did not name us in the commission of offence at her first version and thereafter the complainant lodged the FIR in accordance with his own choice and the statement of victim was also got recorded by the victim in order to support the complainant's version." 6. Explanation furnished by Nadeem appellant for the charges leveled against him is to the following effect:— "I have been buying the milk from complainant party. A short ago, a dispute arose between us and I stopped to buy the milk from complainant party, whereupon they became angry with me and due to this fact they falsely involved me in this case merely on conjecture and surmises. Although victim did not name us at her first version deposed before the PWs as we heard later on." 7. As indicated above, in their defence the appellants examined Asghar Ali (D.W.I), who was mentioned in the FIR as an eye-witness, and was given up by the prosecution. The appellants did not appear as their own witnesses. 8. Learned Additional Sessions Judge acquitted the appellants of the charge under Section 11 of the said Ordinance but convicted and sentenced them under sub-section (3) of Section 10 thereof as stated at the out set. 9. It was contended by the learned counsel for the appellants that there were large number of contradictions, discrepancies and improbabilities in the prosecution case and, therefore, it did not justify their conviction. His submissions in this regard will be considered in due course. In reply to his argument, it was urged by the learned counsel for the State that the defects pointed out by learned counsel for the appellants were immaterial and did not justify the acquittal of the appellants. 10. The foremost factor which has created doubt in our mind with regard to the identity of the appellants is that it was stated by Mst. Jannat Bibi (P.W.3), who is the victim in this case, that after the occurrence when she had first contact with her brother, Anwarul Haq (P.W.2) she told him that according to her guess the offence had been committed by Manzoor and Murtaza. If it was a day-light occurrence, as stated in the FIR, and it is not the prosecution version that the culprits had muffled their faces, the question of her making a guess would not have arisen. It is in the statement of Mst. Jannat Bibi that both the appellants were known to her and they were also identified by the witnesses. A little later she hanged her position and said that she knew Nadeem appellant previously but Hameed appellant was seen by her for the first time on the day of occurrence. Although she had denied the suggestion that the actual culprits were Manzoor and Murtaza yet her statement regarding the aforesaid guess in respect of Manzoor and Murtaza has made the involvement of the appellants highly doubtful. It has, virtually, knocked the very bottom out of the case of the prosecution. 11. Further, according to the site plan, Ex.PF, prepared by Investigating Officer, the place of occurrence is 28 karams from the Dhari from where Mst. Jannat Bibi was forcibly lifted. The eye-witnesses were at a distance of one killa when they heard her hue and cry. It is not the case of Mst. Jannat Bibi or of any one else that she raised alarm as soon as the culprits forcibly lifted her from the Dhari. What appears from the prosecution evidence is that she raised alarm only at the time of occurrence. Her silence during the period for which she was forcibly taken from the Dhari to the place of occurrence shows that either she was a consenting party or the incident did not take place as stated by the prosecution. Be that as it may, this factor also creates doubt in regard to the soundness of the prosecution version. 12. It is also amazing that the three eye-witnesses could not apprehend either of the two appellants. If these witnesses had actually seen the occurrence, they should have succeeded in catching hold of at least one of the appellants because this abominable occurrence must have caused grave provocation to the witnesses, especially the brother of the victim, who was also amongst them. It is also note­ worthy that Asghar Ali (D.W.I), who, too, according to the FIR, had seen the occurrence alongwith the eye-witnesses cited by the prosecution, namely, Anwarul Haq (P.W.2) and Naseer (not examined), had stated that he contacted Mst. Jannat Bibi when she was weeping at her Dhari and on inquiry she told him that one Murtaza had committed zina with her. This indicates that he had not seen the occurrence and, therefore, there was need for making inquiry from her. We have already made a mention of the statement of Mst. Jannat Bibi in which she had guessed that she had been ravished by Manzoor and Murtaza. Thus, her statement to the extent of Murtaza tallies with the deposition of Asghar Ali. It was also stated by Asghar Ali that on hearing the alarm of Mst. Jannat Bibi, he, Anwarul Haq (P.W.2), and Naseer (not examined) rushed o the place of occurrence but it was not correct that when they reached the said place the appellants were molesting Mst. Jannat Bibi. 13. Keeping all this hi view, we doubt that the persons named in the Fl R as eye-witnesses had witnessed the incident giving rise to this case. There is considerable delay in reporting the matter to the police. It is alleged that occurrence took place on 23rd August, 1991, at 1.30 p.m. Anwarul Haq (P.W.2), who is complainant in this case and a brother of the victim, said that after the occurrence they continued sitting at the Dhari till evening. No explanation whatsoever is forthcoming as to why they remained at the Dhari for such a long time instead of going to the chak (village) and taking steps for making immediate report at the Police Station. It was explained by him that some persons tried to effect compromise and thus the making of the FIR was delayed. This is a usual explanation which is furnished to cover up delay in such like cases. It was stated by Anwarul Haq (P.W.2) that since their honour had suffered a serious set back, they did not agree to patch up the matter and reported it to the police. The pinch of the incident experienced by him soon after the occurrence would have been more than the one felt by him after the passage of several hours, and if he could not pocket the insult done to the family he should have hastened to report the matter to police. Delay in reporting the matter to the police also, therefore, indicates that the complainant party took time to decide as to who should be saddled with responsibility for the occurrence because according to one version Mst. Jannat Bibi was raped by Manzoor and Murtaza, and not by the appellants who were named in the FIR. 15. It was further submitted by learned counsel for the appellants that the appellants were aged about 16 years but the victim was about 40 years old. According to her brother, Anwarul Haq (P.W.2) she did not marry because she was sick. Her ailment has not been revealed. It is not the case of the prosecution that she was a crippled lady and could, therefore, be easily subjected to zina-biljabr. We are conscious of the fact that a young boy, over-powered by sexual lust, can go to any extent to satisfy his lust but the picking up of an elderly and sick lady for such a purpose is somewhat unusual. 16. As already stated, of the three eye-witnesses cited in the FIR, Asghar Ali (D.W.I) has not supported the story embodied in the FIR. Another eye- itness, namely, Naseer has not been examined. The only eye witness who appeared to support the prosecution is Anwarul Haq (P.W.2). He is real brother of the victim and also the complainant. He did not catch hold of either of the two culprits. The victim suspected that two persons, who were not the appellants, had committed zina-bil-jabr with her. A little earlier, we have expressed doubts with regard to the presence of eye witnesses at the time of occurrence. In the circumstances, the statement of Anwarul Haq complainant is of little avail to the prosecution. 17. This leaves us with the statement of the prosecutrix. She, too, was not sure about the identity of the culprits inasmuch as on her first contact with her brother, Anwarul Haq, she told him that according to her guess she had been raped by Manzoor and Murtaza. She was not unacquainted with the appellants because in the first instance she categorically stated that they were known to her. A little later, however, she said that she previously knew Abdul Hameed appellant but had seen Nadeem appellant at the tune of occurrence. We have already noted, more than once, that she did not raise any alarm when she was lifted from her Dhari and taken to the place of occurrence at a distance of about 28 karams. Although there are rulings of the Superior Courts to the effect that in appropriate cases conviction can be based on the statement of the prosecutrix alone but in the circumstances of the present case her statement only does not justify the conviction of the appellants. 18. A technical objection raised by learned counsel for the appellants was that in the charge framed against the appellants, the date of occurrence was given as 23rd April, 1991, although at other places, in the record, the date of incident was mentioned as 23rd August, 1991. He pleaded that the said error in the charge had prejudiced the appellants' case. In reply, it was submitted by learned counsel for the" State that the said discrepancy was of no consequence and the conviction of the appellants and sentences awarded to them could not be set aside on the basis thereof. In this connection, he placed reliance on Section 537 of the Code of Criminal Procedure, which reads as follows:- "537 Finding or sentence when reversible by reason of error or omission in Charge or other proceedings:— Subject to the provisions hereinbefore contained, no finding, sentence order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account - (a) of any error, omission or irregularity in the complaint, report by policeofficer under Section 173, summons, warrants, charge, proclamations, order, judgment or other proceedings before or during trial or any inquiry or other proceedings under this Code, or (b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges, unless such error, omission or irregularity has in fact occasioned a failure of justice. Explanation.- In determining whether any omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should "have been raised at an Earlier stage in the proceedings." 19. We feel that in the charge, the month of occurrence was wrongly mentioned due to typographical error. At other places, in the record, the date has correctly been stated. At no stage of the proceedings, appellants took exception to the date occurring in the charge although, in view of the explanation appended to Section 537, they should have pointed out the said error at the earliest opportunity. Keeping all this in view, we are of the opinion that the mistake with regard to the month of occurrence, appearing in the charge, was of clerical nature and did not cause any prejudice to the appellants. In any case, this mistake, by itself, does not warrant the setting aside of the conviction and sentences awarded to the appellants. The error in question is therefore, to our mind, of no avail to the appellants. 20. What emerges from the above discussion is that it is extremely difficult to uphold the conviction of the appellants because the prosecution has failed to establish its case beyond reasonable doubt. We have, therefore, no option but to acquit both the appellants of the charge under sub-section (3) of Section 10 of the said Ordinance. 21. Resultantly, this appeal is accepted and conviction of the appellants under sub-section (3) of Section 10 of the said Ordinance and the sentences awarded thereunder are set aside. They shall be set at liberty forthwith if not required in any other case. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 FSC 76 [Appellate Jurisdiction] PLJ 1993 FSC 76 [Appellate Jurisdiction] Present: mir hazar khan khoso, CJ and muhammad ilyas, J MAQBOOL AHMAD-Appellant versus THE STATE-Respondent Jail Criminal Appeal No. 280/1 of 1992, decided on 11.4.1993 Pakistan Penal Code, 1860 (XLV of 1860)- —-Ss. 302 & 364 read with Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Section 10(3)-Abduction, murder and zina-bil-jabr—Offences of-Conviction for-Challenge to-Contention that dead body of Muhammad Malik was not seen by any witness, therefore it could not be said that he had been killed-It is clearly discernible from statement of Duty Officer (P.W.13) that he had seen dead body-Evidence of last seen was furnished by P.W.l- Photographs of dead body and last worn clothes etc. were identified by P.W. 1 and her father-In addition, there is extra-judicial confession of appellant before P.W. 4 and P.W. 5 that he had killed Muhammad Malik and threw his dead body in a deserted well-Held: There is no doubt that appellant had abducted Muhammad Malik and then caused his death with a view to fulfilling his nefarious desire of committing zina-bil-jabr with Mst. Abida Bano- Conviction maintained on all charges but sentence of fine under Section 10(3) of Ordinance set aside. [Pp.79,80&81]A,B&C Mr. Sultan Mansoor, Advocate for Appellant. Mr. Muhammad Aslam Uns, Advocate for State. Date of hearing: 11.4.1993. judgment Muhammad Ilyas, J.-Maqbool Ahmad son of Muhammad Shafi, cast Jat, resident of Chak No. 101/DNB, Police Station Dera Nawab Sahib, District Bahawalpur, has preferred this appeal against judgment, dated the 1st October, 1992, passed by Mr. Fiaz Rabbani Khan Sial, Additional Sessions Judge, Bahawalpur, whereby he convicted the appellant under Sections 364 and 302 of the Pakistan Penal Code and sentenced him to undergo life imprisonment and to pay a fine of Rs. 5,000/- or, in default, suffer rigorous imprisonment for one year, on each count. Learned Additional Sessions Judge also convicted him undef Section 11 and sub-section (3) of Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the said Ordinance, and sentenced him to undergo life imprisonment and to suffer whipping by fifteen stripes on the first count and to undergo rigorous imprisonment for twenty five years and to suffer whipping by thirty stripes on the second count. Under sub­ section (3) of Section 10 of the said Ordinance, a fine of Rs. 5,000/- too was imposed on him and he was ordered to suffer further rigorous imprisonment for one year for non-payment of fine. All the sentences were ordered to run concurrently and benefit of the provision of Section 382-B of the Code of Criminal Procedure was also allowed to the appellant. In view of the provisions (of) Section 544-A of the Code of Criminal Procedure, it is directed by the learned Additional Sessions Judge that out of the amount of fine, if recovered, Rs. 10,000/- shall be paid, as compensation, to the legal heirs of Muhammad Malik who, according to his findings, had been killed by the appellant. 2. The prosecution story is that the said Muhammad Malik was an uncle of Mst. Abida Bano (P.W.I). Although she had been married, she was living with her parents in Chak No. 101/DNB of the Bahawalpur district. She had some ailment and the appellant offered to take her to an Aamil of Ghotki, in the Province of Sindh, for treatment. Her offer was availed of, and Mst, Abida Bano and her uncle, Muhammad Malik, went to Ghotki alongwith the appellant. The appellant kept them in a house, for three days, and then took Muhammad Malik to locate the said Aamil. After 4 or 5 days, the appellant returned to Mst. Abida Bano and asked her to accompany him. On inquiry, the appellant told her that Muhammad Malik was sitting in a tonga outside, on the road. On this, she went out with the appellant but did not see her uncle in the tonga . The appellant threatened her at the point of a big knife, hereinafter referred to as dagger, that if she again inquired about her uncle she would be killed. The appellant then shifted her to another deserted house and kept her there for a month or so. During this period, he continued subjecting her to zina-bil-jabr and whenever she asked him about her uncle she was threatened as aforesaid. After lapse of the said period, he brought her to the bus stop of Ghotki where she was fortunate enough to see her father, Abdul Ghafoor (P.W.3) and two uncles, namely, Maqsood Ahmad (P.W.2) and Muhammad Anwar (not examined). She raised alarm whereupon the appellant made good his escape. Her father and uncle brought her to the Police Station of Dera Nawab Sahib where FIR, Ex.PA was recorded at her instance, on 13th April, 1990. In the FIR, it was alleged by Mst. Abida Bano that she had been abducted by the appellant for the purpose of committing zina-bil-Jabr with her, that her uncle, Muhammad Malik had also been abducted by him in order to take his life and that he had actually achieved the objects behind their abduction. 3. On the day following the one on which the matter was reported to the police, Mst. Abida Bano was medically examined by Lady Doctor Irshad Bibi (P.W.8). It was opined by the Lady Doctor that she was not virgin. Ex.PE is her medico-legal report. The Lady Doctor took two vaginal swabs of Mst. Abida Bano and sent them to the Chemical Examiner, Multan, for examination. According to the report, Ex.PO, furnished by the said Chemical Examiner, the vaginal swabs were stained with semen. The appellant appeared before Dr. Abdur Rehman Shah (P.W.4), Muhammad Hussain (P.W.5) and Muhamad Yousaf (not examined) on 23rd May, 1990, and confessed his guilt. He asked them to produce him before the police. This was done and thereupon the appellant was arrested by Madad Hussain (P.W.14), an Inspector of Police. While in police custody, the appellant led to the recovery of blood stained dagger, Ex. P.I, which was taken into possession by the said Inspector, vide recovery memo, Ex.PC, in the presence of Maqbool Ahmad (P.W.6) and Riaz Ahmad (not examined). The Inspector also prepared site plan, Ex.PK, showing the place of recovery of the dagger. The dagger was sealed into a parcel and handed over to Ghulam Murtaza (P.W.ll), a Police Constable, for safe custody. He then gave it to another Police Constable, namely, Ghulam Mustafa (P.W.10) who delivered it in the office of the Chemical Examiner, Lahore, for examination. The Chemical Examiner, vide his report Ex.PM, expressed the opinion that the dagger was stained with blood. According to report, Ex.PN, furnished by the Serologist, the blood on the dagger was of human origin. 4. Contact of the Bahawalpur police with the police of Ghotki revealed that, on llth February, 1990, one Moulvi Abdul Haleem Ghana made FIR, Ex.PF, at the Police Station of Ghotki, stating that a dead body was there in the deserted well. This FIR was recorded by Ghulam Nabi Chacher (P.W.13) who was acting as Duty Officer at the said Police Station. On this, the police of Ghotki went to the spot and prepared Fard Mauqa Wardat, Ex.PG, injury statement, Ex. C-3 and inquest report, Ex.C-5. On the moving of application, Ex.PJ, postmortem examination was performed on the dead body recovered from the well. Ex.PE/1 is the report of Dr. Muhammad Ahmad (P.W.12) who performed autopsy on the dead body. He opined that death of the deceased had occurred (due) to head injury. As there was no claimant of the dead body, it was buried, under the supervision of the Chairman, Municipal Committee, Ghotki, as an un-claimed one. Ex.PB to Exs.PB/1-4 are the photographs of the dead body. Muhammad Ubaidullah, (P.W.7), who is an Assistant Sub-Inspector of Police, took into possession the said Fard Mauqa Wardat, injury statement, inquest report, postmortem report and photographs, vide recovery memo Ex.PD. The police of Ghotki had retained with it the last worn clothes of the deceased, his wrist watch and emulate (taveez). Mst. Abida Bano and her father went to Ghotki and identified the said articles and photographs as those of Muhammad Malik deceased. < 5. Shaukat Ali (C.W.I) translated documents Mark A to E, which are in Sindhi language. Their Urdu versions are recorded in Exs.C-1 to C-5. 6. Before conclusion of the investigation, incomplete challan was submitted by Azhar Hussain Shah (P.W.9), who is a Sub-Inspector of Police. On finalisation of the investigation, however, complete challan was submitted by Inspector Madad Hussain (P.W.14) and thus the appellant was sent up before the learned Additional Sessions Judge to face trial on charges under Sections 302 and 306 of the Pakistan Penal Code and Section 11 and sub-section (3) of Section 10 of the said Ordinance. 7. The prosecution examined as many as 14 witnesses, referred to above, who supported its case. Thereafter, the appellant was examined, under Section 342 of the Code of Criminal Procedure. He denied having committed the offences attributed to him. He did not produce any evidence in defence and also failed to make his own statement on oath. 8. View taken by the learned Additional Sessions Judge was that the evidence produced by the prosecution, except evidence relating to recovery of the dagger, deserved credence. He found that even the evidence other than that of recovery of the dagger warranted a verdict against the appellant. He, therefore, convicted and sentenced him as stated earlier. 9. Undoubtedly, there is no ocular evidence regarding the killing of Muhammad Malik by the appellant but it is evident from the statement of Mst. Abida Bano (P.W.I) that she was taken away from Chak No. 101/DNB of Bahawalpur District on the pretext of arranging treatment at Ghotki. It was also deposed by Mst. Abida Bano that on reaching Ghotki the appellant took away Muhammad Malik whereafter Muhammad Malik disappeared for ever. Photographs of his dead body, Ex. PB to PB/1-4 were identified by Mst. Abida Bano and her father and so also his last worn clothes, the wrist watch and the emulate (Taveez). Then, there is extra judicial confession, made by the appellant before Dr. Abdur Rehman (P.W.4) and Muhammad Hussain (P.W.5) in which he confessed having abducted and killed Muhammad Malik. This circumstantial evidence leaves no room for doubt that the appellant had abducted Muhammad Malik in order to murder him and that he had actually hacked him to death. 10. The only argument raised by the learned counsel for the appellant, and that too half-heartedly, was that the dead body of Muhammad Malik had not been seen by any of the witnesses examined by the prosecution and, therefore, it could not be said that he had been killed. This is not true, because it is evident from the statement of Duty Officer, Ghulam Nabi Chacher (P.W.13) that on the making of FIR, Ex.PF, by Maulvi Abdul Halim Ghana, he (Duty Officer) went to the deserted well in which there was the dead body and prepared Fard Mauqa Wardat, Ex.PG, injury statement, Ex.PH and inquest report, Ex.PI, relating to the dead body and then despatched the dead body for post mortem examination, vide his application, Ex.PJ. Ex.PE/1 is the post mortem examination report furnished by Dr. Muhammad Ahmad (P.W.12). According to the statement of the Duty Officer, last worn clothes on the dead body, the wrist watch and emulate (Taveez) were also removed by the police. It was further stated by the Duty Officer that the dead body was buried as an unclaimed one under the supervision of the Chairman Municipal Committee, Ghotki. He went on to say that photographs, Ex. PB to PB/1 to 4 of the dead body were also prepared. It is, therefore, clearly discernible from his statement that he had seen the dead body. Moreover, there is testimony of last seen furnished by Mst. Abida Bano (P.W. 1) which is to the effect that the appellant took away Muhammad Malik from Ghotki and did not bring him back and that when she asked about him, she was threatened with death. All these facts are borne out by the statements of Mst. Abida Bano (P.W.I), Abdul Ghafoor (P.W.3), Muhammad Ubaidullah (P.W.7), Dr. Muhammad Ahmad (P.W.12) and Ghulam Nabi Chacher (P.W.13). Photographs of the dead body of Muhammad Malik were identified by Mst. Abida Bano (P.W.I) and her father, Abdul Ghafoor (P.W.13). His last worn clothes, the wrist watch and the emulate (Taveez) were also identified by them. It was not the plea of learned counsel for the appellant that the photographs on the record are not those of Muhammad Malik. In addition, there is extra judicial confession made by the appellant before Dr. Abdur Rehman (P.W.4) and Muhammad Hussain (P.W.5) that he killed Muhammad Malik and threw his deadbody in a deserted well. We have, therefore, no doubt whatsoever that the dead body of Muhammad Malik was recovered from a deserted well and that it was seen by Ghulam Nabi Chacher (P.W.13) who took out necessary proceedings in regard to his dead body. We are also satisfied that the appellant had abducted Muhammad Malik and then caused his death with a view to fulfilling his nefarious desire of committing zina-bil-jabr with Mst. Abida Bano without having any fear of Muhammad Malik deceased. 11. Learned counsel for the appellant did not say anything else against the evidence relied upon by the learned trial Court for holding that all the charges levelled against the appellant had been proved beyond reasonable doubt. At the stage of trial certain objections were raised against the said evidence but they were convincingly repelled by the learned trial Court. These objections were not dopted by learned counsel who appeared before us on behalf of the appellant. This shows that he too did not find any force in the objections advanced before the learned Additional Sessions Judge. We are also of the view that the prosecution evidence relied upon by the learned Additional Sessions Judge inspires confidence and justifies the conclusions reached by him. We, therefore, maintain the conviction of the appellant on all the charges framed against him. 12. As for the punishment awarded to the appellant, we have noticed one legal defect in the order of the learned Additional Sessions Judge with regard to the sentence of fine imposed by him under sub-section (3) of Section 10 of the said Ordinance. A perusal of sub-section (3) of Section 10 of the said Ordinance would clearly reveal that it does not contain any provision obliging or permitting a Court to inflict the sentence of fine also. The learned Additional Sessions Judge had, therefore, fallen in error in sentencing the appellant to pay a fine of Rs. 5000/- under sub-section (3) of Section 10 of the said Ordinance and directing him to suffer further rigorous imprisonment for one year for non-payment thereof. Accordingly, we set aside the sentence of fine imposed on the appellant under sub-section (3) of Section 10 of the said Ordinance. The other sentences are warranted by law and are not excessive. We, therefore, maintain all the convictions of the appellant and the sentences awarded to him, except the sentence of fine under sub-section (3) of Section 10 of the said Ordinance which has been set aside just above. 13. The appellant shall have the benefit of provisions of Section 382-B of the Code of Criminal Procedure which was allowed to him by the learned trial Court as well. 14. The appeal is disposed of accordingly. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1993 FSC 81 [Appellate Jurisdiction] PLJ 1993 FSC 81 [Appellate Jurisdiction] Present: mir hazar khan KHOSO, CJ, and nazir ahmad bhatti, J MUHAMMAD ASHRAF-Appellant versus THE STATE-Respondent Criminal Appeal No.ll7-L of 1991 linked with Suo Moto No.l07-L of 1992, dismissed on 16.3.1993. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)- —-S.10(3) read with Pakistan Penal Code, 1860, Section 452-Zina-bil-Jabar and trespass-Offences of-Conviction for-Challenge to-There is no reason for complainant party for having roped an innocent person after leaving real culprit who had committed a heinous offence with a minor girl—No material was brought on record to discredit version of victim—Her version is confidence inspiring—Doctor PW5 who had medically examined victim, is definite that she was subjected to zina— His evidence also lends support to version of victim- Held: Prosecution had, indeed, proved its case beyond reasonable doubt—Held further: There is no reason to interfere with well considered judgment passed by Additional Sessions Judge-Appeal dismissed. [Pp.84,85&86]A,B,C&D 1985 SCMR 510 rel. Mr. Hamid Azhar Malik, Advocate for Appellant. Mr. Muhammad Akhtar, Additional A.G. and Mr. Shabbir Hussain Qureshi, Advocate for State. Date of hearing: 24.2.1993. judgment Mir Hazar Khan Khoso, Chief Justice.--This appeal is directed against the judgment dated- 7-3-1991 passed by the learned Additional Sessions Judge, Muzaffargarh, whereby the appellant was convicted for offence under Section 452 PPC and Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) as uncier- (/) Under Section 452 PPC: To suffer R.I. for five years and fine of Rs. 5000/- in default to suffer R.I. for one year. (n) Under Section 10(3) of the To suffer R.I. for seven years Ordinance. and thirty stripes. The sentences of imprisonment were ordered to run concurrently. 2. It is case of the prosecution that on 30-12-1983 before Maghrebwela, appellant Muhammad Ashraf son of Iman Din trespassed into the house of complainant PW.l Mst. Asghari and committed rape upon her daughter Mst. Sajida Parveen-aged'8 years old. The case was registered at the statement of Mst. Asghari vide F.I.R. No. 325 on 31-12-1988 at Police Station, Saddar, Muzaffargarh. The complaint reads as under:- To' prove charge for offence under Section 452 PPC and Section 10(3) of the Ordinance, the prosecution examined seven witnesses. PW.lMsL Asghari Begum, complainant. PW.2 Muhammad Anwar, father of victim. PW.3 Mst. Sajida Parveen, victim. PW.4 Mirza Abdul Baig, SI\SHO. PW.5 Dr. Tariq Nawaz Babar. He examined the victim and the appellant PW.6 Manzoor Hussain, ASI, formal witness. PW.7MushtaqHussain, Constable. In reply to Question No.7 under Section 342 Cr.P.C. the appellant submitted that:- "I have been falsely implicated and the PWs are biased and interested against me. The real fact is that one Pappoo committed zina-bil-jabr with Mst. Sajida PW. Pappoo aforesaid is the maternal aunt's son of Mst. Sajida Perveen. Pappoo was let off and I was falsely involved." In defence he examined DW1 Qazi Mahboob Ahmad and DW.2 Khan Muhammad. Vide his judgment dated 7-3-1991 the learned Additional Sessions Judge, Muzaffargarh rejected the defence theory and convicted and sentenced the appellant for the offence as mentioned hereinabove. Hence this appeal. 3. Mr. Hamid Azhar Malik, Advocate, appeared for the appellant and Mr. Muhammed Akhtar, Additional Advocate General with Mr. Shabbir Hussain Qureshi, Adovcate, appeared for the Slate. The learned counsel for the appellant has raised the following grounds:- (/) One Pappu related to the complainant party had committed rape upon Mst. Sajida Praveen, he was let off and in his place the appellant was roped in. (if) There are material contradictions in the report of the Medical Officer and the Chemical Examiner and presence of blood at the cot or site. (Hi) DW.2 Khan Muhammad though'prosecution witness, had supported the version of the appellant. In support reliance was placed on (/) NLR 1986 S.D.347 (ii) NLR 1987 S.D.185 («7) NLR 1987 S.D.143 The learned counsel for the State vehemently controverted the contentions raised by the learned counsel for the appellant and stressed for maintaining the conviction and sentences of the appellant. 4. The phenomenon of substitution in criminal cases has been found to be alien by the Courts of this country. Our views are fortified by the quotation Nadeem-ul-Haq and others v. Tlw State, reported in 1985 SCMR 510. Besides there is no reason for the complainant party for having roped an innocent person after leaving a real culprit who had committed a heinous offence with a minor girl. The objection of the learned counsel for the appellant regarding identity of appellant and denial thereof by victim Mst. Sajida Parveen has no relevancy at all. The first ground, therefore, fails and is repelled accordingly. 5. The learned counsel for the appellant then pointed out contradictions in respect of the presence of blood on the cot and ground by PW2 Muhammad Anwar, PW.l Mst. Asghari, PW.3 Afef. Sajida Parveen and denial thereof by PW.4 Mirza Abdul Baig, S.I. and time of occurrence in the F.I.R. &£ " -PW.l Mst. Asghari "4.J/ " and PW.3Mtf. Sajida^<£~i^>> "The first contradiction seems to be superfluous. No weight can be given thereto. Regarding the time, al! the three witnesses are unanimous. Asarwela comes before Maghrebwela. It is thus not a contradiction. Even otherwise both the contradictions are of minor nature and have no bearing on the vital issue. This ground also fails. 6. Witnesses Jan Muhammad and Khan Muhammad have been given up as having been won over. Though Khan Muhammad has been examined in defence (DW.2). He has shown Pappu having committed rape upon Mst. Sajida Parveen In cross examination he admitted that he had identified him from his back at a distance of about two acres. The learned Additional Sessions Judge did not rely on his evidence and turned it down for the reason as under:- "In support of his version the accused producedJDW.2 Khan Muhammad but his evidence is discardable on the ground inter-alia that he had been given up by the prosecution as won over. Even otherwise his evidence is not confidence inspiring. In cross examination he admitted that the place where Pappu committed zina was visible from the place where the DW was present. It does not stand to reason that Pappu would have the courage to commit zina al a place visible to whole of the gathering of the Kliairat. Moreover, he admitted that he did not see Pappu committing zina hence his evidence is irrelevant. He also conceded that he identified Pappu from behind his back at a distance of 8 Bigha when he was running. The identity of Pappu in these circumstances is doubtful. The accused has, therefore, failed to establish his plea of false substitution." All the grounds taken by the learned counsel for the appellant therefore failed. 7. However, we had the advantage of going through the evidence of PW.3 Mst. Sajida. In unequivocal terms she has implicated the appellant. Her evidence in that respect is:- "About one year and 9 months ago, I was present in my house. My father had gone to perform duties in Fazal Mills. My mother and my brothers had gone to attend the feast of Khan Muhammad. Muhammad Ashraf accused present in the court came there at Asarwela. Muhammad Ashraf accused caught me from my arm and took me into the room from the courtyard of my house. The accused removed his shalwar and my shalwar and started committing zina-bil-jabr with me. The accused placed his hand on my mouth when I was weeping. I felt pain. My shalwar became blood stained. The accused had completed his act of zina-bil-jabr-with me and on my alarm were attracted, my brother, Jan Muhammad and Khan Muhammad PWs. I told the occurrence to my mother, Khan Muhammad and Jan Muhammad PWs. The accused ran away on seeing my mother and the PWs. I was medically examined." No material was brought on the record to discredit her such version. Her evidence is confidence inspiring. The learned trial Judge has rightly relied B thereon. Besides, it gets support from the evidence of PW.I Mst. Asghari Begum who in her examination-in-chief has deposed:- "My husband used to work in Fazal Cloth Mills Muzaffargarh and is working as such even at present. 1 alongwith my children remain in the house in the absence of my husband. About one year and 9 months ago my husband had gone to perform his duties at Fazal Cloth Mills. I had gone to attend a feast in the house of Jan Muhammad and Khan Muhammad PWs, leaving my daughter Mst. Sajida Parvcen in the house to keep a guard. Mst. Sajida Parveen was 8 years old at that time. I came back to my house before Maghrebwela. When I reached near the door of my house I heard the alarm of Mst. Sajida Parveen PW from the house. When I opened the door, I saw Muhammad Ashraf accused present in the court running away from my house, who was in the process of wearing the shalwar. Upon my alarm Khan Muhammad and Jan Muhammad PWs were attracted and they also saw the accused when he was in the process of putting on his shalwar. Then I attended my daughter Mst. Sajida Parveen who was weeping in the room. Upon my query, Mst. Sajida Parveen PW told me that Muhammad Ashraf accused had committed zina bil jabr with her and that when she was weeping, the accused put his hands upon her mouth. My daughter was profusely bleeding from her private parts. I made Mst. Sajida Parveen to wear the same shalwar which was blood stained. The night fell and my husband came back from duty at 11 P.M. in the night. I was all alone hence I could not go any where. In the following morning I alongwith my husband and my daughter Sajida Parveen went to the hospital M.Garh but the lady doctor was not available there till afternoon. Due to non-availability of the lady doctor we set off towards our house. When we reached Chowk Pir Jahanian, the Tltanedar met us at the said Chowk and I told the whole episode to the 'Tiianedar. The Tnanedar recorded my statement Exh.PA and procured my thumb impression after reading over its contents to me. The SHO then directed his subordinate Tlianedar to get Mst. Sajida Parveen medically examined. Khan Muhammad and Jan Muhammad PWs are real brothers interse and they are the paternal uncles of the deceased." PW.5 Dr. Tariq Nawaz who had examined Mst. Sajida Parveen is definite that she was subjected tozina. His evidence also lends support to the version of the victim. The prosecution, therefore, had indeed proved its case beyond reasonable doubt. In last para of his judgment, the learned trial Judge has rightly observed that:- "The up shot of the above discussion is that the prosecution has succeeded in bringing home the charge against the accused beyond doubt." 8. In view of the circumstances discussed herein above, we see no reason to interfere with the well considered judgment passed by the learned Additional Sessions Judge. He has indeed taken pains to arrive at the right conclusion. In the result of our abovesaid observations, the appeal fails and the same is dismissed accordingly. We also see no mitigating circumstance in the case which may call for reduction of the sentence .The appeal is disposed of accordingly. Suo Moto Notice No.l07/L of 1992 for enhancement of sentence is discharged. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 FSC 86 [Appellate Jurisdiction] PLJ 1993 FSC 86 [Appellate Jurisdiction] Present: M hazar khan khoso,cj,and nazir ahmed bhatti, J. GHULAM MOHIUDDlN-Appellant versus THE STATE-Respondent Criminal Appeal No.334/L of 1992, accepted on 31.5,1993. Benefit of doubt— —Robbery and murder—Offences of--Conviction for—Challenge to—Neither name nor any description of features of appellant were given in report made by appellant-Complainant and PW2 did not know him previously-- Identification parade had become very doubtful-It was alleged in F.I.R. that complainant had a torch at time of occurrence, but it was not alleged by any of eye-witnesses that they had identified' assailants in torch light—Failure to produce torch at time of report also showed that actually there was no torch with any of PWs—Recovery of weapon from appellant does not advance case of prosecution because no shot was fired from rifle—Held: Much doubt has been created in matter and charge could not be proved against appellant beyond any reasonable doubt-Appellant acquitted. [Pp.88&891A,B,C&D Ch. M. Mahmood, Advocate for Appellant. Mr. Ab.dul Kiialiq Klian Niazi, Advocate for State. Date of hearing: 18.4.1993. judgment Nazir Ahmed BhattiJ.- Complainant Muhammad Tufail, P.W.2 Bashir Ahmad and deceased Muhammad Asghar, residents of village Attari Karam Singh, were carrying on the business of 'kltoya' at bus-stand of village Talvandi, On 6.1.1991 at 7.00 P.M all the three were going back to their village after the business and when they were about \ furlongs from the village they were confronted by three persons. The latter were not known to the former and all the three were clad in shalwar qamees, were of medium height and wheat complexioned. Out of the three assailants two were armed with rifles and one was armed with a shot gun. One assailant armed with a rifle, carried out search of the pocket of the complainant and took out Rs.lOOO/-from him and his identity card. The other assailant with the rifle carried out search of the pocket of Bashir Ahmad and robbed him of Rs.60/-and his identity card. When the 3rd assailant armed with the shot gun tried to carry out the search of Muhammad Asghar. the latter resisted whereupon the former fired a shot at him with which he was hit on the neck, fell down and expired at the spot. Thereupon all the three assailants fled away from the spot. The complainant asked Muhammad Bashir to look after the dead body and he went to make report in Police Station Kangan Pur but the investigating officer met him in the way and he recorded his report at 9.00 P.M. 2. Autopsy on the dead body of Muhammad Asghar deceased, (the doctor has given the name Muhammad Ashraf, perhaps erroneously) was carried out by P.W.4 Dr. Shahid Salim on 7.1.1991. The doctor found the following injuries on the dead body:- 1. "One circular wound 2^ c.m diameter. Margins inverted and blackened. Tracia deep in front of neck just above the manuprium sterni. Wound was directed backword and to the right and was chest cavity deep. Right caretid and juglor vesscles were ruptured. Right lung was perfurated. Chest cavity of right side was full of blood. 2. Three lacerated wounds size 1 c.m x 1% c.m each. Margins everted, chest cavity deep on the back of the chest right side upper part 8 c.m right of middle line and 1st rib posterior side was fractured. One cardboard was recovered from injury No.2." 3. According to the opinion of the doctor injuries No.l and 2 communicated with each other, so injury No.l was entry wound and injury No.2 was exit wound. The doctor gave the.opinion that death occurred due to shock and haemorrhage on account of injury which was sufficient to cause death in ordinary course of business. The doctor further gave the opinion that the duration between injury and death was few minutes. 4. The appellant Ghulam Mohi-ud-Din and his other co-accused Haji Muhammad and Muhammad Rafique were arrested on 19.1.1991. Their identification parade was held on 30.1.1991. After investigation they were sent up for trial before the Additional Sessions Judge Chunian who charged all the three under Section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and under Section 302/34 PPC. All the three accused pleaded not guilty to the charges and claimed trial. 5. After the conclusion of the trial the learned Additional Sessions Judge convicted all the three accused under Section 302/34 PPC and sentenced each of them to undergo life imprisonment and to pay a fine of Rs.20,000/- each or in default to further undergo simple imprisonment for 6 months. The earned Additional Sessions Judge also convicted all the three accused under Section 20 of the Hudood Ordinance and sentenced each of them to undergo imprisonment for 7 years. Convict Ghulam Mohi-ud-Din has challenged his conviction and sentence by the appeal in hand. 6. We have gone through the entire record of the case with the assistance of the learned counsel for the parties and have also heard their arguments. 7. P.W.I Muhammad Tufail and P.W.2 Bashir Ahmad are eye witnesses of the occurrence. Both have corroborated the contents of the report which was made by P.W.I Muhammad Tufail. Appellant Ghulam Mohi-ud-Din. while in police custody, led the police party on 3.2.1991 to a sugarcane field of one Khalid Maqaman Wala within the limits of village Dingh Shah and pointed out rifle Ex.P.3 which he had allegedly burried there which was recovered by P.W.ll Muhammad Ali Inspector in the presence of P.W.6 Muhammad Aslam. The nvestigating officer had also recovered from the spot one empty of 12 bore Ex.P.2 on 6.1.1991 vide recovery memo Ex.PC. 8. Neither the name nor any description of features of the appellant were given in the report made by the complainant. The latter and P.W.2 Bashir Ahmad also did not know him previously. The identification parade was held on 30.1.1991 and during the investigation the name of the appellant had been disclosed to the investigating officer by some persons of the village in the presence of the complainant and the other eye witnesses. It had come in evidence that both die eye witnesses had met the investigating officer before they were called upon to identify the appellant and there are strong reasons to believe that they were informed of the features of the appellant. As such the identification parade had become very doubtful. 9. The occurrence took place at 7.00 P.M in the month of January and it was a dark night. The appellant was also not known to the P.W.s. It was, therefore, very doubtful whether they had correctly marked the features of the appellant. This point finds further support from the fact that the features of none of the assailants were disclosed in the F.I.R. Even on this score it was doublful whether the eye witnesses had correctly identified the appellant and had noted any particular features about him. It was alleged in the F.I.R that the complainant had a torch at the time of the occurrence but it was not alleged by any of the eye witnesses that they had identified the assailants in the torch light. The failure to produce any torch to the investigating officer at the time of report also showed that actually there was no torch with any of the P.Ws. 10. The recovery of weapon of the appellant does not advance the case fo the prosecution in any way because no shot was fired from the rifle. Only one shot was alleged to have been fired at the time of occurrence and that was of 12 bore hot gun and one empty of 12 bore was recovered form the spot. The 12 bore shot gun was recovered from one of the assailants but no effort was made to connect the said empty with the shot gun. 11. From the aforesaid circumstances we have come to the conclusion that much doubt was created in the matter and the charge could not be proved against the appellant beyond any reasonable doubt. We, therefore, extend the benefit of doubt to the appellant and by accepting his appeal, set aside the conviction and sentences awarded to him by the learned Additional Sessions Judge Chunian by judgment dated 30.7.1992. He is acquitted of the offence for which he was convicted and sentened. He shall be set at liberty forthwith if not wanted in any other case. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 FSC 89 [Appellate Jurisdiction] PLJ 1993 FSC 89 [Appellate Jurisdiction] Present: MiR hatar KHAN Kliosn, CJ IJAZ MEHMOOD-Appellant versus THE STATE-Respondent Criminal Appeal No.427-L of 1992, dismissed on 11.3.1903. Prohibition (Enforcement of Hudd) Order, 1979 (P.O.4 of 1979)- —Art.4--Heroin--Recovery of-Conviction for—Challenge to-ConlraJiclions pointed out are of minor nature and same occur due to passage of lime-­ Regarding non-obtaining of search warrant from Magistrate, it may he observed that PW5 has in clear words said that appellant dug a place outside of his house-Even otherwise, during leading to recovery of contraband material, search warrant is not nccessary-Prima facie, grounds leading to acquittal of appellant (in case FIR No.283 of 1991, wherein he was under custody when he led to recovery of herion, subject matter of this case) seem to be not only unconvincing but superfluous also—No benefit can be extended in favour of appellant on basis of same-Held: Learned Magistrate has already taken a lenient view in awarding sentence and there is no merit in appeal- Appeal dismissed. [Pp.92£95]A,B,C&D Mr. Shamim Iqbal Butt, Advocate for Appellant. Mr. Muhammad Akhtar, Additional Advocate General with Mr. Shabbir Hussain Qurcshi, Advocate for Stale. Date of hearing; 3.3.1993. judgment This appeal is directed against the judgment dated 25.10.1992 passed by the learned Section 30 Magistrate, Sialkot, whereby the appellant was convicted for offence under Article 4 of Prophibilion (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) and sentenced to suffer R.I. for four years, fine of Rs.10,000/-, in default whereof to suffer S.I.for six months more and ten stripes. 2. It is case of the prosecution that appellant Ijax. Mehmood was in custody of police in FIR No.283/91 dated 8.9.1991. Curing interrogation before C.I.A. police on 11.9.1991 he agreed to lead to recovery of contraband material which he had concealed under the earth near his house. On the same day at noon lime the appellant led to recovery of heroin weighing 1000 grams in presence of ASI Mehmood Hussain and other police staff. Sample was taken therefrom. Inventory was prcpred accordingly. FIR was registered at the police station Ugoki. The sample was certified to be heroin by the expert. However, after usual investigation the appellant was challaned before the court of the learned Section 30 Magistrate for trial. The case came up for trial before the court of the learned Magistrate where the appellant did not plead guilty to the charge and claimed trial. The prosecution, therefore, examined PW.l Ehsan Ullah, Constable, formal witness, PW.2 Muhammad Iqbal, Head Constable, formal witness, PW.3 Muhammad Anwar, ASI, formal witness, PW.4 Muhammad Anwar, Head Constable, and PW.5 Mehmood Hussain, ASI. 3. In his statement recorded under Section 342 Cr.P.C.the appellant denied the allegation and canvassed innocence. In his statement recorded under Section 340(2) Cr.P.C. he explained his position as under:- The learned Magistrate did not believe his defence and while relying on the evidence of the prosecution, convicted and sentenced the appellant for the offence as mentioned herein above. Hence this appeal. 4. Mr. Shamim Iqbal Butt, Advocate, appeared for the appellant and Mr. Muhammad Akhlar, Additional Advocate General with Mr. Shabbir Hussain Qureshi, Advocate, appeared for the State. 5. The learned counsel for the appellant in support of his appeal has raised the following grounds:— (/) There are material contradictions in evidence of PW.4 Muhammad Anwar and P.W.5 Mehmood Hussain, which deioot the prosecution case. (h) No search warrant was obtained for the raid of the house. Reliance was placed on an authority reported in 1992 S.C.M.R. 1502. 7. The learned counsel for the State vehemently controverted (he contentions raised by the learned counsel for the appellant and stressed for maintenance of conviction and sentence of the appellant. I had the opportunity to go through the evidence of prosecution witnesses, the statement of the appellant and the judgment passed by the learned Magistrate. The learned counsel for the appellant pointed out the following contradictions in evidence of PW.4 Muhammad Anwar and PW.5 Mehmood Hussain:— (/') The material was wrapped in Khaki envelope or white. (//) People from public had gathered or not. (//'/) Chain of hand cuff was in the hand of Ehsanullah or not. (/v) Witnesses had gone on foot or on a vehicle. (v) Unearthed the spot in the house. (vi) Chain of hand cuff was in the hands of Imtiaz Shah or not. (vii) Unearthed the spot outside the house. 8. The contradictions mentioned herein above are of minor nature. Such contradictions occur due to passage of time. The incident had taken place on 11.9.1991 and witnesses have been examined in September, 1992. Thus no importance can be attached to such discrepancies. The learned Magistrate has rightly disposed of such objections in the words as:~ "There are some minor discrepancies in the statements of witnesses which are of no importance and the same did not go to the roots of the case." I too agree with his view. Regarding non-obtaining of search warrant from a Magistrate it may be observed that PW.5 Mehmood Hussain has in clear words said that the appellant dug a place outside of his house. I have gone through evidence of PW.4 Muhammad Anwar. He has mentioned the corner of the house. It is not clear whether it was inside or outside of the house. In such situation while relying on evidence of PW.5 Mehmood Hussain it can be said that the appellant dug a place outside the house. Even otherwise during leading to recovery of contraband material search warrant is not necessary. Besides, the appellant has been challaned and case proceeded against the appellant before the Court, thus such defect would neither affect the competence nor jurisdiction of the Court. Reliance is placed on (/) 1984 S.C.M.R. 392, (//) 1986 S.C.M.R. 1836 and (Hi) 1989 P.Cr.L.J. 209. (/) In 1984 SCMR 392 the Court has taken the view:-- "Wc may now come to the last point, that is, the offence of drinking. if committed at a place other than public, being not cognizable, whether the investigation and submission of challan by the police in such a case is vilialive of the trial. According to Article 16, an offence punishable under Article 4, Article 8 or Article 11 is cognizable "if committed at a public place." Since the offence under Article 11, even if not committed at a public place, is also punishable, Article 16 seeks to create a distinction by making only the offence committed at a public place cognizable. Thus where the act of drinking is committed at a public place, the offence is cognizable and the police officer can take action under the Code of Criminal Procedure without any curb on his power to arrest. Article 12(1), however, caters for a different situation, that is, where the offender has not committed the act at a public place but is only suspected of having taken an intoxicant in violation of Article 8 or Article 11, in which case the police officer shall fust ask him to accompany him to an authorised medical officer. The police officer can detain and arrest the suspected person only if he, either refuses to so accompany him or having been examined by the medical practitioner, is certified by him to have taken an intoxicant. There is thus no conflict between the provisions of Articles 16 and 12(1). The two provisions clearly refer to two different situations and provide for distinct modes of action. Where the act is committed al public place and is as such cognizable under Article 16, there is no need to take the offender to a medical officer before making his arrest. But where he is only suspected of having committed the offence, further confirmation has been considered by the Legislature necessary before authorising the police to effect his arrest. The argument that the provision of Article 12(1) can apply only in a cogni/able case, is, therefore, misplaced and contrary to legislative intent. By necessary implication, the police officer, once he makes arrest in accordance with Article 12(1), can investigate into the case and forward report under Section 173 Cr.P.C. Where, however, the police officer acts in disregard of sub-Article (1) of Article 12, he shall be liable under sub-Article (2) of that Article, but this will not affect the cognizance of the offence taken by the Court under Section 190, Cr.P.C. or its jurisdiction to try offender." (ii) In 1986 S.C.M.R. 1836 the Court has taken the view:-- "As regards the first contention, suffice it to say that the proposition of law is well settled that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court. The fact that the learned trial Court had the requisite jurisidction in the matter was not disputed by the learned counsel." (///) In 1989 P.Cr.LJ. 209 the Court has taken view:- "The view taken by the Supreme Court of India, it may be mentioned, is not different than the one adopted by the Superior Courts of Pakistan and (in) HA. Rishbud and another v. State of Delhi AIR 1955 SC 196 it was held that cognizance under Section 190 of the Code of Criminal Procedure on an invalid police report cannot be said to be prohibited and, therefore, a nullity. Such an invalid report may still fall either under clause (a) or (b) of Section 190(1) of the Code of Criminal Procedure and in any case, cognizance so taken, is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537 of the Code of Criminal Procedure is attracted. In my considered opinion, had attention of the learnd Single Judge been drawn to the above authorities, which have laid down a settled law in the matter, he should have no occasion to have taken a contrary view in the case Karim Haider v. Slate (supra) In this context of the mater, the inescapable conclusion that one can draw is that, investigation by any Law Enforcement Agency, is a proceeding antecedent to the trial. Any illegality/irregularity during the course whereof may expose the Investigating Officer to any criminal or, as the case may be, a civil action in the circumstances of a case, but it cannot be visualised as to how this disability of his can project itself to the proceedings in a Court of law or prevent it from taking cognizance of the offence on a report purportedly made by him under Clause (a) or (b) of Section 190 of the Code of Criminal Procedure. Similarly if a Court is otherwise complent to take cognizance of a case and, under the law, is equipped with the jurisdilion to try the same; it is difficult to see as to how an infirmity in the pre-trial proceedings would prevent the Court from proceeding with the trial or, for that matter to quash the proceedings pending before it on this ground. I am, therefore, of the firm view that jurisdiction of a Court cannot be ousted merely because a report was submitted by a Police Officer who was not authorised to investigate. In the instance case too I would hold that non-compliance of Section 155(2) of the Code of Criminal Procedure will have no bearing on the trial before the learned Magistrate as he is otherwise competent to proceed with the trial and as such no case is made out to warrant action under Section 561-A Code of Criminal Procedure." 9. Then the learned counsel for the appellant contended that the appellant was acquitted in the case FIR No.283/91 hence he be also acquitted in this case. The learned counsel has placed before me the judgment dated 26.10.1992 passed by the learned Magistrate. I have gone through the judgment. The learned Magistrate has acquitted the appellant from the case for the reasons:— "I have gone through the record and evidence adduced on i!k file. I have also heard the arguments of learned counsel for the accused as well as Stale Prosecutor. There are so many discrepancies and draw-backs .n this case. Firstly: The police has not obtained any search warrant for conducting search of the house, though they had prior information. Secondly: The police has not associated any public witness, nor given any explanation for non-compliance of Section 103 Cr.P.C. In the complaint, in addition to these shortcomings, the deposition of prosecution witnesses is discrepant on the point of mode of recovery. More than that there is no deposition about the issuance of docket in the chain of witnesses. PW.2 who is investigating officer and the complainant at the same time, his such evidence is not considered as free of doubt. The house from which the recovery was allegedly made was not in exclusive possession of the accused and other persons also residing there. So no implicit reliane can be placed on the statements of such witnesses, who witnessed the recovery proceedings. PW.2 and PW.5 have got significant contradictions on the manner of weighing of recovered heroin which creates serious doubt whether the alleged recovery was made or fuistcd upon the accused. In the light of above discussion, I am of the opinion that prosecution has not stood on its legs and was not able to establish its version beyond any reasonable shadow of doubt. The accused being a favourite child of law should be given benefit of doubt not as a concession but as a right. In addition to this benefit of doubt the drawbacks/irregularities committed by the police are not curable. I, therefore, while giving benefit of doubt to the accused acquit him from the commission of offence under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 4 of 1979, accordingly." 10. Prinia fade the grounds leading to acquittal of the appellant seem to be 1 not only unconvincing but superfluous one also. Thus no benefit can be extended] in favour of the appellant on the basis of the same. 11. In such view of the facts there is no merit in the appeal which is dismissed accordingly. The learned trial Magistrate has already taken a lenient view in awarding the sentence to the appellant. I see no ground to lessen it. The appeal is disposed of accordingly. (MBC) (Approved for reporting) Appeal-dismissed.

PLJ 1993 FSC 95 PLJ 1993 FSC 95 [Appellate Jurisdiction] Present: MIR HA2AR KHAN KHOSO, CJ ABDUL RASHEED alias EIDA-Appellant versus THE STATE-Respondent Criminal Appeal No.405-L of 1992, dismissed on 14.3.1993. Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979)— —Art.4-Heruin-Rccovery of-Conviction for~Challenge to-Evidence of PW3, PW4 and PW5 is unanimous so far as recovery of contraband material from appellant is concerned-No animosity has been shown against them by appellunt-They had no reason to falsely implicate him—Nothing has been brought in cross-examination to discard their positive evidence—Their evidence as such inspires confidence—There is no bar for investigation of case by PW5 who is Sub Inspector, C.I-A.-Evcn otherwise, irregularity committed during investigation would not affect competence or jurisdiction of Court—Held: All grounds taken by learned counsel for appellant fail-Held further: However, sentence seems to be severe-Sentence reduced. [P.97JA Mr. Muhammad Aslam Nagi, Advocate for Appellant. Mr. Muhammad Akhtar, Addl. A.G. with Kli. Sliaukat Ali, Advocate for State. Date of hearing: 14.3.1993. judgment This appeal is directed against the judgment dated 14.10.1992 passed by the learned Additional Sessions Judge, Khanewal, whereby the appellant was convicted for offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) and sentenced to suffer R.I. for six years, ten stripes and fine of Rs.2,000/-, in default to undergo R.I. for six months more. 2. It is case of the prosecution that on 30.8.1990 at about 9.00 A.M. the appellant was apprehended by PW.5 Muhammad Khan, S.I. and other police staff. From his possession 240 grams of heroin was recovered. Sample taken from it was certified to be heroia by the expert. After usual investigation the appellant was challaned before the Court. The case came up for trial before the Court of the learned Additional Sessions Judge, Khanewal, where the appellant did not plead guilty to the charge and claimed trial. The prosecution, therefore, examined PW.l Abdul Ghafoor, Constable, PW.2 Sultan Mehmood, ASI, PW.3 Muhammad Sharif, Constable, PW.4 Khurshid Ahmad Constable, PW.5 Muhammad Khan, S.I. investigating officer and P.W6 Zafarul Haq, Constable. 3. In his statement recorded under Section 342 Cr.P.C. the appellant denied the allegation and claimed innocence. He examined DW.l Abdul Lutif and DW.2 Muhammad Sharif in defence. However, the learned trial Judge did not believe his defence and while relying on prosecution evidence convicted the appellant for the offence and sentenced him for the same as mentioned herein above. Hence this appeal. 4. Mr. Muhammad Aslam Nagi, Advocate, appeared for the appellant and Mr. Muhammad Akhtar, Additional Advocate General with Khawaja Shaukat Ali Advocate, appeared for the State. 5. The learned counsel for the appellant has raised following grounds in support of his appeal: (/) PW.5 Muhammafl Khan, S.I. has not stated^before the Court that he had handed over the sealed sample to PW.l Abdul Ghafoor. (h) PW.l Abdul Ghafoor has not given the date on which he had given the sample to PW.6 Zafarul Haq. (Hi) Investigation conducted by witness Muhammad Khan, S.I. of C.I.A. is illegal as he was not incharge of Police Station, Saddar Kabirwala. (/v) The recovery of contraband material has no nexus with the appellant. 6. The learned counsel for the State vehemently controverted the contentions raised by the learned counsel for the appellant and urged for maintaining the conviction and sentences of the appellant. 7. The first two grounds taken by the learned counsel for the appellant seem to be of superfluous nature. They do not touch the merits of the case at all. The evidence of PW.3 Muhammad Sharif, PW.4 Khurshid Ahmad and PW.5 Muhammad Khan, S.I. is unanimous so far as recovery of contraband material from the appellant is concerned. No animosity has been shown against them by the appellant. They had no reason to falsely implicate the appellant. Nothing has ben brought in cross-examination to discard their positive evidence. Their . evidence as such inspires confidence. The material was kept in safe custody by PW.l Abdul Ghafoor. He handed over the same to witness Zafarul Haq, who has affirmed that so far the sample remained with him it was not tampered with. Chemical Examiner's report which is positive, therefore, proves that the contraband material recovered from the appellant was heroin. Besides, there is no bar for invesligation of the case by PW.5 Muhammad Khan, S.I. of C.IA. police. Even otherwise, irregularity committed during investigation would not affect the competence or jurisdiction of the Court. All the grounds taken by the learned counsel for the appellant, therefore, fail. In result thereof the appeal is dismissed on merits. However, the sentence seems to be severe. It is reduced from six years' R.I. to three year's R.I., ten stripes are reduced to five stripes and fine of Rs.2,000/- is reduced to Rs.1,000/-, in default whereof to suffer R.I. for three months more. The appellant shall also be entitled to the benefit of Section 382-B Cr.P.C. With this modification in the sentences the appeal is disposed of accordingly. (MBC) (Appoved for reporting) Sentence reduced.

PLJ 1993 FSC 98 PLJ 1993 FSC 98 [Appellate Jurisdiction] Present: mir HAZAR KHAN Klioso, CJ MUHAMMAD JAMEEL-Appellant versus THE STATE-Respondent Criminal Appeal No.463-L of 1992, dismissed on 11.3.1993. Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979)-- —Art.4—Heroin—Recovery of—Conviction for—Challenge to—PWs.l and 4 have fully implicated appellant for having been found in possession of contraband material which has been certified by expert as heroin-Witnesses have no animosity against appcllant-They had no reason to falsely implicate him- Their evidence is confidence inspiring—Defence witnesses have been discarded on sound reasons—Held: Magistrate has evaluated evidence of prosecution and defence on sound principles of administration of Justice and there is no reason to take a different view-Appeal dismissed. [P.100JA&B Mr. Shainim Iqbal Butt, Advocate for Appellant. Mr. Muhammad Akhtar, Addl. A.G. with Mr. Musood Sadiq Mirza, Advocate for State. Date of hearing: 4.3.1993. judgment This appeal is directed against the judgment dated 11.11.1992 passed by the learned Section 30 Magistrate, Siulkot, whereby the appellant was convicted for offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to suffer R.I. for three years, ten stripes and fine of Rs.1000/-, in default to suffer S.I. fur four months more. 2. It is case of the prosecution that on 2.11.1991 at about 200 P.M. the appellant was apprehended and from his possession 500 grams of heroin was recovered. Sample was taken therefrom and report of expert in respect of the same is in positive. F.I.R. No.384 of 1991 was registered at Police Station Hajipura on the same day. After usual investigation the appellant was challaned before the Court to face trial for the offence. Before the learned trial Magistrate the appellant did not plead guilty to the charge and claimed trial. The prosecution, therefore, examined:— PW.l MuhammdArif, ASI, recovery witness. Supported the case. PW.2 Khadim Hussain, Head Constable, a formal witness. PW.3 Zakaullah, Constable, a formal witness. PW.4 Rashid Mehmood, star witness/investigation officer. 3. In his statement recorded under Section 342 Cr.P.C. the appellant denied the allegation and canvassed innocence and examind DW.l Muhammad Anwar and DW.2 Allah Ditta in defence. The learned Magistrate, however, found him guilty for the offence, convicted and sentenced him for the same as mentioned herein above. Hence this appeal. 4. Mr. Shamim Iqbal Butt, Advocate, appeared for the appellant and Mr. Muhammad Akhtar, Additional Advocate General with Mr. Masood Sadiq Mirza, Advocate, appeared for the State. 5. The learned counsel for the appellant at the very outset contended that inspite of people being present at the spot, no one from them was examined, hence no reliance can be placed on the evidence of police officials whose evidence gets no independent support from any quarter. Besides, there are material contradictions in depositions of PW.l Muhammad Arif and PW.4 Rashid ehmood regarding presence of people at the spot. Thus the conviction and sentence of the appellant be set aside. Reliance was placed on an authority reported in 1992 SCMR 1475. 6. The learned counsel representing the State vehemently resisted the contentions of the appellant and defended the judgment passed by the learned Magistrate. 7. It may be observed that in narcotic cases persons from public not only avoid but decline to act as witness, but unfortunately, if some one is associated he either declines to support the prosecution or gives damaging concession in cross examination in favour of 'the traffickers for one or the other reason. In such view of the fact the Courts have considered the evidence of person hi uniform to be as good as that of any person from public; if it stands to test of cross-examination and other tests. Reliance is placed on PLD 1991 FSC 1. 8. The only contradiction pointed out in evidence of PW.l Muhammad Arif and PW.4 Rashid Mehmood is that PW.l Muhammad Arif has said lhat nobody was present there but two purchasers were seen going whereas PW.4 Rashid Mehmood has said that some persons were there. If the two statements are kept in juxta-position it would show that some people were there whether they were spectators or purchasers. However, it is not a conti adiction which may affect the recovery of contraband material from the person of the appellant. 9. In the end abortive attempt was mde to attack the weighing of the material. That objection is also of trival natue and would be of no help to the appellant. 10. I had the opportunity to go through the evidence produced by the prosecution and the defence. PW.l Muhammad Arif and PW.4Rashid Mchmood have fully implicated the appellant for having been found in possession of the contraband material which has been certified to be heroin by the expert. The wit lesses have no animosity against the appellant. They had no reason to falsely implicate him. Their evidence is confidence inspiring. On sound reasons the defence witnesses have been discarded. The observations made by the learned Magistrate in that respect are also relevant. The same is as under: -- "I have gone through the record and evidence adduced on the file. I have also heard the arguments of the defence counsel as well as State prosecutor. There are some minor discrepancies in the depositions of PWs, but that is natural, because it is very difficult to give mathematical account of prosecution version, however, all the PWs have deposed corroborate evidence on the point of time, place and mode of recovery. All the PWs are police officials, but no animosity has been brought on file which can be considered and their evidence may be discarded. There is no infirmity, animous or malafides attached to investigating officer so his evidence can be quite believable. It is also noted that procuring of witnesses from public was not possible in the late hours of night so the prosecution evidence as such is confidence inspiring. Whereas defence witnesses are disbelicvable because DW.l is father of the accused and DW.2 is next door neighboured Both have got favourite attitude towards the accused. The report of Chemical Examination Ex.PD is positive. All the prosecution witnesses supported on oath the prosecution story in all details. Such omissions would not create any doubt about the credibility of witnesses." 11. Indeed, the learned Magistrate has evaluated the evidence of posecutio'n and defence on sound principle of administration of justice. I see no reason to take a different view than that taken by him. The appeal, therefore, fails, which is dismissed accordingly. The learned Magistrate has already taken a lenient view while awarding lesser sentence to the appellant. Thus there is no other mitigating circumstance which may call for reduction of sentence. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 FSC 100 [Appellate Jurisdiction] PLJ 1993 FSC 100 [Appellate Jurisdiction] Present: Mm hazar KHAN khoso, CJ, AND NAZJR AHMAD bhatti, J STATE-Appellant Versus HAFEEZ and another—Respondents Criminal Appeal No.253/L of 1991, partly accepted on 16.3.1993 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)- —Ss.lO(3)&13--Zma-b(7-;abr and abetment-Offences of--Acquillal of respondcnts-Challange to--Reasons given by trial court for acquittal of . respondents, are indeed superfluous and based on surmises and conjectures- Plea of alibi is dubious-Trial Judge has misread evidence and reached incorrect conclusion that respondent No.l was physically present at Railway Station Khanewal at time of incident—Evidence of victim implicating respondent No.l for having committed rape upon her, is supported by evidence of her father and lady doctor—Charge under Section 10(3) of Ordinance, stands proved against respondent No.l beyond reasonable doubt-Held: Acquittal of respondant No.l is not based on settled principles of administration of criminal justice-Held further: No active role having been assigned to respondent No.2, evidence is not sufficient to establish charge under Section 13 of Ordinance against her-Respondent No.l convicted. [Pp.llO&lll]A,B,C ) D&E Mr. Muhammad Akhtar, Addl. AG. with Mr. A.H. Masood, Advocate for Appellant. Mian Masood Ahmad Bhutta, Advocate for Respondents. Date of hearing: 22.2.1993. judgment Mir Hazar Khan Khoso, CJ,~.This appeal under Section 417 Cr.P.C. is directed against the judgment dated 18-7-1991 passed by the learned Additional Sessions Judge, Khanewal, whereby respondents Hafeez and Mst. Manzooran alias Manni were acquitted of the charge framed against them under Section 11, 13, 14 and 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) on 9-5-1990. 2. The case is based on the complaint filed by PW.4 Nazar Iqbal with PW.7 Yousaf Ali, ASI, on 25th of February, 1989. On the basis thereof F.I.R. No.ll of 1989 for offence under Sections 10/13 of the Ordinance was registered at Police Station Makhdoompur Pahoran. Witness Yousaf Ali went to the site, prepared site plan, recorded statements of Mst. Maqsood Mai and other witnesses and sent Mst. Maqsood Mai for examination to lady doctor. On transfer of investigaton the case came in hands of PW.8 Shamas-ul-Haq, S.I. On 10-4-1989 one Allah Bakhsh produced respondent Hafeez before him alofigwith his licenced gun. He arrested him. He recorded statements, of some witnesses and then submitted challan against the two respondents before the court but placed Mst. Manzooran in Column No.ll of the challan. The case came up for trial before the court of the learned Additional Sessions Judge, Khanewal, where both the respondents did not plead guilty to the charge and clamied trial. The prosecution, therefore, examined:- PW. 1 Lady Dr. Naveed She examined Mst. Maqsood Mai on 25.2.1989. Her deposition is:- "1. Mark of violence was present. (/) Two parallel contusion marks 13 cm x 1-1/2 cm on the upper lateral side of right thigh. (//') Contusion mark 3 cm 2-1/2 cm on the upper lateral side of right thigh at right angle to mark No. 1. (///) Contusion mark 6 cm x 2-1/2 cm on the right lip. (/V) Diffused swelling on upper part of right forearm on the back side. Advised X-ray. 2. Shalwar was not stained with any semen. 3. Congestion of inner surface of left side of labia. 4. Fresh tear of posterior margin of hymen. 5. Vagina admitted two fingers tightly." PW. 2 Talib Din, ASI Formal witness. His evidence is:- "On 25.2.1989 I was posted as Moharrir/ASI P.S. Makhdoompur Pahoran. On receipt of complaint Ex. PC, I recorded formal FIR Ex. PC/1 which is in my hand and bears my signature. On 26.2.1989 Shaukat Ali Constable handed over to me two sealed - parcels pertaining to this case which I kept in malkhana. On 28.2.1989 I delivered the above mentioned parcels to said Shaukat Ali for onward transmission to the office of the Chemical Examiner, Multan . xxxxxxx by defence counsel. Due to the shortage of employees I could not send the parcels on the same day. I cannot give the time when I received parcels. Even I cannot give the time when I handed over the parcels to the Constable. I do not know when the result of Chemical Examiner was received." PW. 3 Shaukat Ali, Constable. Formal witness. His evidence is:- "On 25.2.1989 I was also posted at P.S. Makhdoompur Pahoran. On that day I accompanied Mst. Maqsood Bibi to Civil Hospital Khanewal. After er medical examination lady doctor handed over to me two sealed parcels pertaining to this case. I handed over the same to Talib Din, ASI/Moharrir on 26.2.1989. Talib Din, ASI, returned these sealed parcels to me for onward transmission to the office of the Chemical Examiner on 27.2.1989 which I delivered the same in the same office intact. xxxxxxx by defence counsel I accompanied Mat. Maqsood Bibi from police station to the hospital. She was produced before the police by her heirs. I cannot give the time as to how much time before her departure she remained in police station. An uncle of the examinee was also with us. It was about 9 PM when we left the hospital. Again said I do not remember the time. I returned to the police station all alone. On my return I deposited the parcel with Moharrir.: PW. Nuzar Iqbal, complainant. Father of victim Mst. Maqsood Mai. Examination-in-chief of his statement is:- "About two years back I had come to Khanewal at about Isha prayer time. When I returned home, I did not find my daughter Mst. Maqsood Mai aged about 10 years picsent in the house. I inquired from Mulazim Hussain PW about her on which he replied that he did not know anything about her. In search of my daughter, I reached near the quarter of Sadique s/o Sultan where 1 heard some cries. When I went inside the house of the said Sadique s/o Sultan alongwith Mulazim Hussain PW, we saw that Hafeez accused present in the court was committing zina-bil-jabr with Mst. Maqsood Mai on a cot. On seeing me Mst. Maqsood Mai raised a hue and cry. Mst. Manzooran accused present in the court was also standing nearby the door. Hafeez accused holding his gun and chaddar in his hand ran away from there. Mst. Manzooran accused also disappeared from there. My daughter told me that Mst. Manzooran had come to her and had involved her in conversation. During this she had taken her to the house of Sadique and handed her over to him where she was subjected to torture and after breaking the string of her shalwar Hafeez accused committed zina with her. The accused then brought the respectables of the locality lo me for a compromise and on 25.2.1989 I got the case registered with P.S. Makhdoompur at lari stand Makhdoompur. Ex.PC is my statement which was read over to me and which I signed in witness thereof." PW. 5 Mst. Maqsood Mai The victim. Exainination-in-chiet of her evidence is:- "About two years back at about evening time I was present in my house that Mst. Manzooran accused present in court came to my house and involved me in conversation during which she took me to her house. There Hafeez accused present in court was present. He had a single barrel gun. lie threatened me with that gun and directed me to lying straight. I kept on standing, thereafter the accused Hafeez broke open the string of my shalwar forcibly and committed zina-bil-jabr with me. Becuase of pain I kept on crying on which my father and maternal uncle Mulazim Hussain reached there. The accused ran away from there alongwith his gun. Mst. Manzooran was also standing In the Vthra. I told this occurrence to my father and uncle. I was medically examined by the lady doctor." PW. 6 Muhammad Riaz, Constable. Examination-in-chief of his evidence is:- "On 10.4.1989 I was posted at Makhdoompur Pahoran police station. On the same day Muhammad Hafeez accused present in the court produced gun 12 bore P-l before the SHO in my presence who took the same into custody vide recovery memo Ex.PD which I signed in witness thereof. Mula/ini Hussain PW also witnessed this recovery." PW. 7 YousafAli, ASI Investigating Officer. PW. 8 Shamas-ul-Haq, S.I. Investigating Officer. PW. 9 Dr. Rao Muhammad Sadiq, Medical Officer. He examined respondent Hafeez Ahmad. Examination-in-chief of his deposition is as under:- "On 11-4-1989 while I was posted as M.O. R.D. Makhdoompur Pahoran, Hafeez Ahmad s/o Ahmad Bakhsh was produced before me by the police vide application Ex.PE for his medical examination. I examined him and vide my report Ex.PE/1 written on the application I found him sexually potent." 3. In the statement recorded under Section 342 Cr.P.C. respondent Muhammad Hafeez explained:- In fact one Dera Nephew of Mulazim Hussain committed this rape with whom the complainant party compromised. I have long standing enmity with Sargana and Awan families. The complainant is a servant of Malik Zaman and is an addict, at the Instance of Malik Zaman this false case has been registered against me although at the time of occurrence I was on duty at Khanewal." Respondent \fst. Manzooran took the same stand as that of respondent Muhammad Hafeez. 4. The respondents examined six witnesses in defence:- DW. IBabarKhan. Examination-in-chief of his statement is:- "I am posted as Head Clerk Railway Station Khanewal and attendance register of the employees remains in oiy charge. Muhammad Hafeez accused present in court is posted as pointman in the Railway Department and in the month of February, 1989, he was posted at Railway Station Khanewal. On 23.2.1989, according to the attendance register he was present at Railway Station Khanewal. A photostat copy of the attendance register duly attested by me is submitted. According to the "Goods Diary" on 23.2.1989 the duty hours of the accused were from 4 PM to 12 PM. A-photostat copy of the said register is also produced duly attested by me as mark 'B'. DW. 2 Muhammad Anwar Examination-in-chief of his statement is:- "I am posted as U.D.C. Railway Hospital, Multan. On 27.2.1989 Muhammad Hafeez accused came to the Railway Hospital, Multan, with a gun shot wound hence we referred him 10 Nishtar Hospital, Multan. The concerned doctor of Nishtar Hospital Multan without removing the bullet referred him back to Railway Hospital Multan. On 1.3.1989 we referred accused Hafeez to Cairn Hospital Lahore which is the Main Railway Hospital. From 1.3.1989 to 12.3.1989 he remained admitted in Cairn Hospital , Lahore and from there he came to Multan and was admitted to Railway Hospital , Multan . From 12.3.1989 to 16.3.1989 he remained admitted in Railway Hospital , Multan . On 16.3.1989 at about 6 P.M. two police officials came to the hospital and tried to arrest the accused on which the hospital's staff intervened and asked the police constables as to why they wanted to arrest him on which they replied that accused Hafeez was wanted in case under Zina Ordinance. The staff directed the police official to obtain permission from the Senior Doctor and therefore the matter was referred to Medical Officer concerned who gave permission after obtaining the requisition in writing from the police staff. The police, therefore, gave writing and arrested the accused from there. A certified copy of the said writing is produced as mark 'C. The certified copies of the other documents are mark 'D' to mark 'M'. Thereafter I do not know what happened." DW. 3 Muhammad Iqbal. Examination-in-chief of his statement is:- "On 23.2.1989 I was serving as a Shunting Master YM Yard Master. Hafeez was doing his job with me. On that date I had checked his attendance for twice as it was a routine. Almost all the day employees attendance is checked because as a shunting master I performed the duties myself and checked the other employess." DW. 4Allah Bakhsh Examination-in-chief of his evidence is:- "Mst. Manzooran accused is my sister. The house ip which the occurrence (is) said to have taken place consists of two rooms. In one room Mst. Manzooran resides with her husband and in the other room my parents, my brother and his family members reside. About 13/14 members of the family reside in that house. The fore wall of this wall is about three feet hieght. On the back side of house a hotel is adjacent to my house and k is a thickly populated area. This house is at a distance of one bigha from the Railway Station. There is great hustle and bustle due to the passengers of the railway station. I had taken oath of the Holy Quran before the complainant regarding the innocence of Mst. Manzooran and he had said that he is now satisfied. On the offer of the complainant my first cousin Khuda Bakhsh had taken oath in the Mosque of Makhdoompur about the innocence of Mst. Manzooran. The oath was with regard to this fact whether occurrence had taken place." DW. 5 Khuda Bakhsh Examination-in-chief of his evidence is:- "When the I.O. came to the place of occurrence for investigation and convened a punchayat the complainant nominated 3/4 persons to give oath of innocence of accused Mst. Manzooran. I was also one of them and I had to give oath in the Mosque of Makhdoompur. In the presence of Chairman and others I took oath of the innocence of Mst. Manzooran accused." DW. 6 Muhammad Hafeez, accused. Examination-in-chief of his statement recorded under Section 340 (2) Cr.P.C. is as under:- "I am absolutely innocent in this case. I have been falsely involved in this case at the instance of Zaman Mehdi Awan. The complainant Nazar Iqbal is a servant of Zaman Mehdi. We have enmity with Sargana and A wan peo'ple. At this stage also a case u/s 307 PPC is pending against me and Zaman Mehdi is a complainant in that case. He had also beaten me and I had got a case registered with railway police. At the time of the alleged occurrence I was doing my job as points man and my duty was at shunting On that night I remained on duty from 4 PM to 12 PM at night. On 26.2.1989 Zaman Mehdi fired at me. I was taken to Railway Hospital Multan who referred to Nishtar Hospital Multan. From there I was shifted to Lahore where I was operated upon and I was sent back to Railway Hospital Multan from where I was arrested on 16.2.1989 or 16.3.1989.1 have no concern with Mst. Manzooran accused." 5. However, the learned trial Judge acquitted the two respondents from the charge on 18.7.1991, The State has filed this acquittal appeal and requested for their conviction for the offence committed by them. 6. Mr. Muhammad Akhtar, Additional Advocate General with Mr. A.H. Masood, Advocate, appeared for the appellant/State and Mian Masood Ahmad Bhutta, Advocate, appeared for the respondents. 7. The learned counsel for the State contended that on flimsy defence of alibi the respondents Muhammad Hafeez and Mst. Manzooran have been acquitted, otherwise it was a proved case against both of them. 8. The learned counsel for the respondents submitted that the evidence produced by the prosecution was found to be insufficient and the defence plea of alibi found proved hence both the respondents have been given a proper acquittal. 9. The observations made by the learned .trial Judge for acquittal of the respondents are given in paragraphs 7, 8, 9 and 10 of the judgment. The same are reproduced hereunder:- "7. The Railway Colony is a thickly populated area and there are about 13/14 Railway Quarters which are partly occupied and partly vacant. There is a hotel of one Saleem adjacent to the place of occurrence and the said Saleem also resides there. The complainant has stated that this hotel was constructed after the occurrence but no such statement was given by the alleged victim. She has also stated that the other family members of the accused Mst. Manzooran also resided in the house in which she was taken to be subjected to zina-bil-jabr by Hafeez accused. She raised a hue and cry but neither any neighbourer of the place of occurrence arrived there nor anybody else. Had it been a deserted area, one could presume that perhaps no body was present to witness this occurrence but in this case the husband, brother and mother of Mst. Manzooran accused resided in this house. If they were not present in that house, at least there could be an apprehension of their arrival to that place and question arises as to what relation existed between the two accused as a result of which Mst. Manzooran accused who is a married lady, facilitated this offence. There is no evidence that there were any such immoral relations between the two accused that Hafeez could ask Mst. Manzooran accused to bring a girl from the neighbourhood for him. There is also no evidence collected by the prosecution to establish that Mst. Manzooran accused has been of that nature that she is involved in prostitution. The alleged victim has also introduced a story that she was beaten by the accused through stick. It is very strange that he is reported to be armed with a single barrel gun and at the point of this gun he directs the alleged victim to open her shalwar but he opts to beat her with a stick and neither that stick has been taken into custody nor it was ever produced before the I.O. Anyway, I fail to understand that when under the threat of a gun, the accused had been able to commit zina-bil-jabr with her, what was the fun hi beating her. It, therefore, seems that the injuries received by the alleged victim were not during the process of sexual intercourse. The reason for a false involvement of the accused has been stated by the accused in his statement u/s 342 Cr.P.C. and in the suggestions put to the prosecution witnesses that in fact she was kidnapped by some body t Ise but due to compromise with him, the accused have been falsely involved in this case. 8. The important event in this case is that the accused have produced defence evidence which consists of statements of Babar Khan DW-1, Muhammad Anwar DW-2, Muhammad Iqbal DW-3, Allah Bakhsh DW- 4, and Khuda Bakhsh DW.5. Hafeez accused himself appeared in the witness box in disproof of the charges against him. Babar Khan DW-1 stated that he is posted as Head Clerk, Railway Station, Khanewal and the attendance register of the employees remains in his charge. According to him Hafeez accused who is posted as a points man in Railway Department was posted at Railway Station, Khanewal in February, 1989 and on 23.2.1989, according to the attendance register he was present at Railway Station, Khanewal. He produced a photostat copy of the attendance register mark 'A'. He also produced a photostat attested copy mark 'B' from the Goods Diary Register according to which the duty hours of the accused on 23.2.1989 were from 4 PM to 12 PM. The witness is an employee of the Government Department and not directly related to the accused. He stated that there is no possibility of a fictitious marking of presence of his office. Muhammad Anwar DW-2 is a UDC, Railway Hospital , Multan and according to him, on 27.2.1989, the accused Hafeez came to Railway Hospital Multan with a gun shot wound hence he was referred to Nishtar Hospital Multan. The witness further deposed that the doctor of Nishtar Hospital Multan referred him back to Railway Hospital without removing the bullet hence on 1.3.1989 he was referred to Cairn Hospital , Lahore , where he remained admitted from 1.3.1989 to 123.1989 and from there he was returned back to Multan Railway Hospital where he remained admitted from 123.1989 to 16.3.1989. The witness deposed that on 163,1989 at about 6 PM two police officials came to Hospital and tried to arrest the accused on which the Hospital staff intervened and asked the police constables as to why they wanted to arrest Mm, They informed that he was wanted in a Hudood case on which Hospital Staff directed the police to obtain permission from the Senior Doctor and, therefore, the matter was referred to Medical Officer concerned who gave permission after obtaining the requisition in writing from the police staff. A certified copy of the said writing was produced as mark 'C and certified copies of the other documents were produced as mark 'D' to mark 'M'. 9. Muham nad Iqbal Shunting Master as DW-3 stated that on 23.2.1989, he was sen ing as a Shunting Master and Hafeez accused was doing his job with him. The witness deposed that on that date he had checked his attendance for twice by way of routine and almost all the day employees attendance is checked because as a shunting master he had performed his own duties and had checked the staff. Mst. Marizooran accused produced her brother Allah Bakhsh and one other Khuda Bakhsh who stated that tht i.O. convened a punchayal when he came to the place of occurrence where the complainant nominated four persons and offered that if any one of them gives oath of innocence of Mst. Manzooran accused she would be considered innorxat. Hence Khuda Bakhsh DW-5 gave the oath. Hafeez accused as DW-6 stated his own case. 10. A perusal of the defence evidence would show that the witnesses produced by Hafeez accused belong to has department who proved the record that at the time of the alleged occurrence, the accused was working physically at Railway Station, Khanewal. The I.O. did not investigate this case from this point of view. He has not even correctly recorded his arrest. According to Shamas al Haq PW-S, on 10.4.1989 one Allah Bakhsh Sahu produced Hafeez accused before him alongwith his licenced gun, hence he arrested him whereas according to the DWs, the same Shamas ul Haq SHO had arrested the accused from Railway Hospital Multan on 163.1989. The Investigating Agency has, therefore, committed padding hi this case and no reliance can be placed on their investigation. The prosecution produced only the alleged victim and her father to establish its story and the back ground between both the parties of a hostility is not denied in so many words by the complainant. The prosecution has, therefore, not been able to bring home the guilt of the accused by means of a convincing, impartial and iadpendent evidence. Both the accused are, therefore, entitled to benefit of doubt hence I acquit both the accused from this case and of the charges that they are facing. The accused are on bail. Their bail bonds are re-called and sureties discharged. File be consigned to record." 10. The reasons given by the learned trial Judge for acquittal of the respondents in paras 7. 8, 9 and 10 above are indeed superfluous one and based on surmises and conjectures hence have no legal force. Para 10 of the judgment reflects that the learned trial Judge was impressed by the defence evidence and thus observed that respondent Hafeez was physically present at Railway Station, Khanewal at the time of incident.- 11. We had the advantage to go through the evidence of DW.l Babar Khan. He has not verified personal attendance of the respondent Hafeez at the Railway Station on 23.2.1989. He has said that according to attendance register he was present there. DW.2 Muhammad Anwar has said nothing regarding alibi. He has given episode regarding his arrest. DW.3 Muhammad Iqbal too has said nothing about physical presence of the respondent Hafeez at the Railway Station on 23.2.1989. DW.4 Allah Bakhsh and DW.5 Khuda Bakhsh's evidence is not relevant in respect of alibi. Indeed, the plea of alibi is dubious. The learned Judge as such has misread the evidence and then has reached to incorrect conclusion that respondent Hafeez was physically present at Railway Station Khanewal at the time of incident on that day. We have gone through the evidence of PW.5 Mst. Maqsooda Mai. She has fully implicated the respondent Hafeez for having committed rape upon her. Her evidence has not been shaken in cross-examination. Thus there are no inherent defects therein. Her evidence is supported by the evidence of her father PW.4 Nazar Iqbal. Besides, W.M.O. Dr. Naveed in unequivocal terms corroborated evidence of Mst. Maqsooda Mai, regarding rape having been committed upon her. No enmity exists between the parties. Phenomenon of substitution is alien to the Courts of this Country. 12. The charge under Section 10(3) of the Ordinance, therefore, stands proved against respondent Hafeez beyond reasonable doubt. 13. So far as respondent Mst. Manzooran is concerned, no active role has been assigned against her, hence the evidence produced by the prosecution is not sufficient to establish charge of Section 13 of the Ordinance against her. 14. In such view of the fact it may be observed that acquittal of respondent Muhammad Hafeez is not based on settled principles of administration of criminal justice. In respect of him, therefore, the appeal filed by the State is accepted. His acquittal recorded by the learned Additional Sessions Judge on 18.7.1991 is set aside. He is convicted for offence under Section 10(3) of the Ordinance and sentenced to suffer R.I. for ten years and thirty stripes. He is also given benefit of Section 382-B Cr.P.C. He be taken into custody to serve out the sentence awarded to him. 16. In respect of Mst. Manzoorau the appeal filed by the State is dismissed. The appeal stands disposed of accordingly. IMBC) (Approved for reporting) Appeal partly accepted.

PLJ 1993 FSC 111 [Revisional Jurisdiction] PLJ 1993 FSC 111 [Revisional Jurisdiction] Present: mir hazar khan khoso, CJ and nazir ahmad bhatti, J MURID HUSSAIN-Petitioner versus THE STATE and another—Respondents Criminal Revision No. 49/L of 1993, accepted on 29.7.1993 Transposition of Parties-- —-Offence under Section 10 of Offence of Zina (Enforcement of Hadood)Ordinance, 1979-Poiice finding respondent 2 as consenting party and showing her in column No. 2 of challan, as absconder—Additional Sessions Judge cancelling her name from challan and making her witness—Challenge to—In Criminal Procedure Code, there is no provision parallel to Order I Rule 10 of C.P.C. whereby court can strike out or add parties at its discretion—Once police submits report under Section 173 Cr.P.C. a court has no jurisdiction to cancel it on its own instance, but has to proceed with case—Held: Additional Sessions Judge was not competent to treat respondent No. 2 as a witness and his order is illegal and without jurisdiction—Revision accepted and case remanded. [Pp.l24,l25&126]A,B&C PLD 1966 SC 708 re/. PLD 1962 (WP) Lahore 405,1970 SCMR 178, PLD 1967 SC 425, PLJ 1974 Cr.C (Lahore) 553,1989 P.Cr.LJ. 903, PU 1985 SC 63 and PLJ 1991 Lahore 247 distinguished, Mr. Rau/'Ahmad Ghori, Advocate for Petitioner. Mr. Masood Sadiq Mirza, Advocate for Respondent No. 1. Mr. A.W. Butt, Advocate for Respondent No. 2. Date of hearing: 29.7.1993. JUDGMENT Mir Hazar Khan Khoso, Chief Justice,-By this revision petition, order dated 13.1.1993 passed by the learned Additional Sessions Judge, Bahawalpur Camp at Ahmadpur East has been challenged .before this Court by Murid Hussain. 2. The facts giving rise to the petition are that on 12.2.1992 on the written complaint of respondent Mst. Noor Mai, F.I.R. No.9/92 for oifece under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) was registered at Police Station, Noushera Jadid. The complaint reads as under: -- 3. During the investigation of the case, the police found respondent/complainant Mst. Noor Mai a consenting party to the sexual intercourse, hence ordered for her challan alongwith petitioner Murid Hussain and his companions for offence under Section 10(2) of the Ordinance before the Court. In the meantime Mst. Noor Mai disappeared, hence proceedings under Sections 87 and 88 Cr.P.C. were taken against her and she was declared absconder. Thus, on 296.1992 a challan against Murid Hussain, his two companions and Mst. Noor Mai was presented before the Court of learned Additional Sessions Judge, where A/it. Noor Mai was placed in Column No.2 with red ink. The remarks of the investigating officer in the challan against respondent Mst. Noor Mai are as under:— However, Msf. Noor Mai filed a direct complaint against Murid Hussain and his two companions for offence under Section 10(3) of the Ordinance before the Court of learned Additional Sessions Judge, Bahawalpur . It may.be seen that before any action was taken by the Court on the challan case filed by the police or the direct complaint, Mst. Noor Mai on 6.1.1993 moved an application before the Court of learned Additional Sessions Judge, Bahawalpur praying that her name be deleted from the array of accused and she be shown to be a" prosecution witness in the case. The application moved by her before the Court reads as under:-- After hearing the parties, the learned Additional Sessions Judge on 13.1 .1993 allowed her application and ordered for her being a witness and resultantly dismissed her complaint. The order reads as under:-- "Perusal of the record verifies this fact that the case was registered on the instance of Mst. Noor Mai. She and her witnesses mentioned in the State case are strict to their statements and they verified the prosecution story set forth in the complaint. In this situation, in my humble opinion it was not fair to term Mst. Noor Mai as a consenting party in this case and to challan her as an accused, it will tantamount to spoil the prosecution case and to provide undue benefit to the actual culprits, especially when Murid Hussain accused was apprehended at the spot and he was got released from the custody of the PWs later on with show of force by his coaccused. The statements of prosecution witnesses were recorded in the private complaint as well as the statement of the complainant. They had verified the actual story. In this situation, it will be fair and in the interest of justice to accede to the request of Mst. Noor Mai, petitioner. I term her as prosecution witness instead of the accused. Application stands accepted. The natural result of this order will be that the private complaint has become useless. It will be an exercise in futility to keep the same pending. That will be considered as stands disposed of accordingly". Against the abovesaid order, the petitioner Murid Hussain has come in this revision petition before this Court. 4. We have heard Mr. Rauf Ahmad Ghori, Advocate, for the petitioner, Mr. A.W. Butt, Advocate, for the respondent and Mr. Masood Sadiq Mirza, Advocate, for the State. 5. At the very outset, the learned counsel for respondent Mst. Noor Mai challenged the maintainability of the revision petition on the ground that the impugned order passed by the learned Additional Sessions Judge was an executive order, hence not amenable to the revisional jurisdiction of this Court. In support reliance was placed on: (0 PLD 1962 (W.P) Lahore 405, (if) 1970 S.C.M.R. 178, («i) PLD 1967 S.C. 425, (/v) PLJ 1974 Criminal Cases 553, (v) 1989 P.Cr.LJ. 903, (v/) PLJ 1985 S.C. 63. The learned counsel for the State supported the contention of the respondent's counsel and adopted his arguments. In reply, the learned counsel for the petitioner urged that the impugned order was a judicial one, hence amenable to the revisional jurisdiction of this Court. To understand the quotations relied upon by the learned counsel for the respondent, it would be necessary to reproduce the relevant propositions laid down in the abovesaid authorities (/) In case of Wazir v. The State a Full Bench of West Pakistan High Court has taken the view as under: - "In the case of an incomplete challan, as in this case, although the Magistrate could start the trial. If he keeps it waiting until another report should come or untill whatever is wanting should be made up, he clearly does not take cognizance of the offence. If, therefore, the case is at that stage and a second report is received, showing that no offence is committed, the Magistrate can accept the report and cancel the case" Such case does not fall within the revisional jurisdiction of the Sessions Judge". (it) In case of Muhammad Arif, Gulab Khan and 6 others and Imtiaz Khan and others v. The State reported in 1970 S.C.M.R. 178, the Supreme Court has taken the view as under:-- "Sardar Muhammad Zafarullah, learned counsel for the petitioners, has contended that under the provisions of the Criminal Procedure Code, the learned A.D.M. could not order the police to submit fresh challan and that in accordance with provisions of Section 190(b) of the Criminal Procedure Code, the learned Magistrate could take cognizance of the case only upon a report in writing of such facts that would show that an offence has been committed. According to the learned counsel in the present case, the police had made a report that the cases against the petitioners be cancelled and, therefore, the order of the A.D.M. to proceed with the cases was unwarranted by law. He contended that the view of the High Court that the Magistrate can take cognizance of an offence even though there is a negative report by the police officer is not in consonance with law. The contention of the learned counsel is without substance. This aspect of the question was considered by this Court in the case of Falak Sher and others v. The State (1). It was held in that case that the Magistrate is not bound by the report submitted by the police under Section 173, Cr.P.C. When the said report is received by the Magistrate, the Magistrate on the report itself may not agree wkh the conclusions reached by the Investigating Officer. There is nothing in Section 190, to prevant a Magistrate from taking cognizance of the case under clause (b) in spite of the police report. It was further held that the action of the Magistrate in issuing summons to accused despite the fact that Investigating Officer in his report under Section 173, Cr.P.C. had placed their names in column 2 thereof was correct". (Hi) In case of Falak Sher v. The State reported in PLD 1967 S.C. 425, the Supreme Court has taken the view as under:-- "In our opinion, the action of the Magistrate in issuing summons to these appellants despite the fact that the investigating officer in his report under Section 173, Cr.P.C. placed their names in column 2, was clearly correct. Section 173, Cr.P.C. is in these terms— 173.-(1) Every investigation under this Chapter shah 1 be completed •without unnecessary delay, and, as soon as it is completed, the officer in charge of the police station shall— (a) forward to Magistrate empowered to take cognizance of the offence on a police-report a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and (b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. (2) Where a superior officer of police has been appointed under Section 158, the report shall, in any case in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. (3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (4) ..................................... Under subsection (1), when the investigation is completed the police officer is required to forward to the Magistrate a report in the prescribed form. Under subsection (3) when it appears from the report forwarded under Section 1, that the accused has been released on his bond "the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit". It is clear that under Section 3 a Magistrate may agree or may not agree with the police report. It, however, does not say what step the Magistrate should take if he disagrees with the police report. If the Magistrate wants to start a proceeding against the accused, he must act under Section 190 of the Code of Criminal Procedure. Section 190 provides that a Magistrate "may take cognizance of . any offence (a) upon a complaint, (b) upon a police report, or (c) upon information received by himself. Now, the question is, if he disagrees with the report, can he take action under clause (b) against those whose names have been placed under column 2 of the challan. As already pointed out, the Magistrate is not bound by the report submitted by the police under Section 173. When the said report is received by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the investigating officer. There is nothing in Section 190 to prevant a Magistrate from taking cognizance of the case under clause (b) in spke of the police report. This Court in the case of Sardar All and others . The State P.S.LA. No.66 of 1966, while dealing with a similar question, observed:-- "Reference to Section 173, Cr.P.C, which prescribes the details that must go into a police report of the relevant kind shows that the requirements are of a factual nature, so that, irrespective of the investigating officer's opinion, a Magistrate takes cognizance on a police report, when he proceeds against a person whose name is mentioned therein' as one accu§ed of the offence reported upon". In conclusuion, we may oberve that this has been the consistent view of the High Court of .West Pakistan and that Court has correctly interpreted the meaning and scope of Sections 173 and 190 of the Code of Criminal Procedure in Muhammad Nawaz Khan v. Noor Muhammad and others (1). For the reasons stated above, we see no ground for interference with the order of the High Court and accordingly dismiss this appeal". ~ f

(iv) In case of reference made by District Magistrate, Sargodha reported in P.LJ. 1974 Cr.C. (Lah.) 553, the Lahore High Court has taken the view as unden- "5. In accordance with this verdict of the Full Bench which has been persistently followed by this Court such orders are deemed to have been passed under Section 173 read with Section 190 of the Criminal Procedure Code and amount only to an administrative order regarding the cancellation of the case and not to the discharge of the accused in judicial proceeding which could operate as a bar against their fresh prosecution. In Amir Ail's case (P.L.D. 1968 Lahore 537) one of us following an Indian authority J.O. Bowla v. Sorab Rustamji Engineer (A.I.R. 1941 Bombay 294) was pleased to take a different view about the nature of such orders, but had re-affirmed the legal right of the informant whose case is cancelled under Section 173 Cr.P.C. that he can seek his remedy by filing a complaint against the accused discharged under this order. In the case in hand we are only concerned with the latter aspect and in the view that I have taken I am duly supported by this judgment as well. This Court has gone still further in the matter by holding that even a fresh investigation can be launched against a person who had been found innocent in an earlier enquiry by the police on a similar report. See Atta Muhammad case (P.L.D. 1969 (W.P.) Lahore 734), Muhammad Hayat's case (P.L.D. 1970 Lahore 729) and Alam Din's case (P.L.D. 1973 Lahore 304). Learned District Magistrate has relied on four authorities, namely, Mst. Tirathbai v. Mst. Sugnibai (AIR 1929 Sind 61(1), Chellomal and others v. Kewalmel Jeramdas (AIR 1939 Sind 38), Abdul Hossain Sana v. Suwalal Aganvala and another (P.L.D. 1962 S.C. 242 and State v. Syed Masood Ahmed (1971 P.Cr.LJ. 1216) which are clearly distinguishable from the facts of the present case. In the first two cases the complaint on similar f^acts had already been dismissed under Section 203 Cr.P.C. by a judicial order passed by another Magistrate and entertainment of a fresh complaint would, in fact, amount to re-opening of the case as in appeal, revision or a review petition, which was beyond his jurisdiction or scope of his authority. These cases were, therefore, not applicable at all to this case. 6. In the third case too the discharge order had been passed under Section 253 Cr.P.C. holding that the charge was groundless, pertinent remark of their Lordships in the body of this judgment is being reproduced below to indicate their viewpoint about it:~ The difference between the view we are taking and the view which was taken in the Full Bench cases (of pre-partition Indian Courts) is not so great as it may at first sight appear. It had been accepted in these cases that if there has been a discharge, after hearing of evidence, there should not be a second prosecution and that is substantially the basis of this judgment". The observation clearly envisaged a dischage order passed on merits under Sections 203/253 Cr.P.C. i.e. after taking cognizance and recording some evidence therein and not merely based on a perusal of the police report or for that matter the police file, as done in the present case. 8. In the fourth case State v. Syed Masood Ahmad even enquiry had been taken in hand and of the three witnesses, who appeared, one did not support the prosecution and the remaining two were given up, but the case was later withdrawn under Section 494 PPC resulting in the discharge of the accused under Section 424(a) Cr.P.C. This case was likewise inapplicable to the facts of the present case". (v) In case of Abdul Hamid and 5 others v. The State reported in 1989 P.Cr.LJ. 903, the Lahore High Court has taken the view as under:-- "The instant case does not fall under Section 190 para 1 clause (c), Cr.P.C. because where cognizance is taken by a Court of a case on the basis of a negative report under Section 173 of the Code, such cognizance is obviously taken on the police report and not upon his own knowledge or suspicion. Furthermore, the opinion of a Police Officer submitting a report is not binding on the Sessions Judge. The Court taking cognizance of the offence becomes seized of entire case and cognizance extends not only to person agabst whom challan has been submitted but to other persons as well who might appear implicated therein. The Court is competent to summon persons mentioned in column No.2 of the challan submitted by the police and it shall be deemed that the Court had taken cognizance on a report in writing of such facts made by the Police Officer and the case falls under Section 190 para 1 clause (b), Cr.P.C. and not under Section 190 para 1 clause (c), Cr.P.C. The same principle was enunciated in Muhammad Haneefand another v. The State 1979 P.Cr.LJ. 1078, Qurban All v. Punhoon and 2 others 1982 P.Cr.L.J. 52 and All Mardan v. Tfie State 1986 P.Cr.LJ. 1206. In this manner, there was no necessity to adhere to the provisions embodied in Section 191, Cr.P.C. (v/) In case of Bahadur and others v. The State, reported in PLJ 1985 S.C. 63, the Supreme Court has observed as under:— "The revisional powers under the Criminal Procedure Code (Sections 435, 436, 439 and 439-A Cr.P.C.) are exercisable only in respect of "any proceeding" conducted by "inferior", "criminal court". The order cancelling a case qualifies as proceeding, equally so the Magistrate passing the order as an inferior, in relation to Court of Sessions and the High Court. The only question requiring determination is whether the Magistrate in cancelling the case acts as a criminal Court. The Criminal Procedure Code contains no definition of court nor does the Penal Code. In Section 20 of Penal Code "Court of Justice" is defined as "a Judge who is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially". This definition is of avail for the purposes of Criminal Procedure Code as sub-section (2) of Section 4 thereof provides "all words and expressions used herein and defined in the Pakistan Penal Code, and not hereinbefore defined shall be deemed to have the meanings respectively attributed to them by that Code". The High Court has taken the view, and we think rightly so, that under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court, conducts judicial proceedings or is amenable to the revisional jurisdiction. Some of his powers and duties under the Code are administrative, executive or ministerial and he discharges these duties not as a Court but as a persona designaca. Mere name of designation of a Magistrate is not decisive of the question because as observed "Judges often administer and administrators often judge". Robson (Justice and Administrative Law P. 15) has after noticing the difficulties and the limitations provided a basis for classification of judicial functions to serve practical purposes. It is reproduced hereunder as foilows:- "With so delicately graded a scale of authorities it is scarcely surprising if we find it difficult to discover an infallible test which shall immediately tell us which functions are judicial and which administrative. It is, however, necessary for practical purposes to have some kind of a classification; and we may accordingly suggest that the primary characteristics of 'pure' judicial functions, by whomsoever exercised, are:- (1) The power to hear and determine a controversy. (2) The power to make a binding decision (sometimes subject to appeals) which may affect the person or property or other rights of the parties involved in the dispute. Administrative functions, on the other hand, consist of those activities which are directed towards the regulation and supervision of public affairs and the initiation and maintenance of the public services". Reid and David in Administrative Law and Practice 2nd Edition Canadian Legal Text Series observe at p.52:- "One hardly needs to be reminded of the pervasiveness of the • doctrine that the nature of the function governs all questions. It touches such diverse isssues as the application of the doctrine of rex judicata which has been held not to apply to the exercise of administrative power, and the doctrine of functus offlcio which has been held in effect not to apply to prevent the exercise of administrative powers". De Smith Administrative Laws 3rd Edition expresses himself on the subject in the following words: "A judicial decision made within jurisdiction is binding and conclusive in so far as it cannot be impeached in collateral proceedings and it cannot in general be rescinded by the tribunal itself (p.65) "A non-judicial act, order, or decision, on the other hand is potentially open to attack for any material error of law or fact in either direct or collateral proceedings and it cannot reconstitute res judicata. In addition, it is sometimes said that a legislative act may always be rescineded by the body making it whereas a valid judicial determination cannot save on very limited grounds". A Magistrate, even while concurring in cancellation of a case is required to judicially examine the report submitted under Section 173 Cr.P.C. (AIR 1968 S.C. 117) and this has led to the impression that he must while doing so be acting and functioning as a Court (1972 Cr.LJ. 1446, 1971 Cr.LJ. 194, AIR 1969 A.P. 281 etc). This obviously is a mistaken impression and the mistake will transparently surface from what has been observed by Robson an what was held in the case of Royal Aquarium (1892) 1 Q.B. 431. Robson at page 39 observes: "We are inclined to go so far as to suggest, indeed, that the whole modern conception of economic and social democracy involves the exercise of discretions which shall be 'judicial' in that they are not to depend on individual caprice and shall be free from personal favour and individual self-interest; and this may imply an extension in certain respects of the judicial mind, an.application of mental habits common among those who administer the judicial process". In the Royal Aquarium case it was held that: "The word 'judicial' has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in Court; or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind that is, a mind to determine what is fair and just in respect of the matters under consideration. Justices, for instance, act judicially when determining in their private room what is right and fair in some administrative matter brought before them, as, for instance, levying a rate". Though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly, and honestly, a duty common to the exercise of all State power, there is no Us before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same magistrate does not even after passing such an order render himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under Section 173, Cr.P.C,, he does not function as a criminal Court. For that reason his order is not amenable to revisional jurisdiction under Sections 436 to 439 Cr.P.C. This appeal is, therefore, allowed, and the impugned order of the High Court is set-aside, as one without jurisdiction". in case of Mst. Amtul Mubin alias Mubin Karim v. Magistrate Jllaqa, South Canti, Lahore reported in PLJ 1991 Lahore 247 the Lahore High Court besides has taken the view as under:- 'In the case registered vide F.LR. No.2 of 12.1.1991 under Section 302/307/34 P.P.C. read with Section 324 of Qisas and Diyat Ordinance, 1990 at Police Station South Cantt, Lahore against respondents 3 to 5 alongwith two others alleging murder of petitioner's son Khurram Karim, the respondents were discharged by Magistrate, Factory Area, Lahore vide the impugned order dated 20,1.1991. granting the police request in the following terms:- legality whereof was assailed in these proceedings by contending that the learned Magistrate has acted purely mechanically solely on the police report without application of independent mind, whereupon the respondents were summoned to join the proceedings, during the course of hearing whereof the learned Additional Advocate-General frankly stated that the impugned order is unsustainable while learned counsel for the respondents stated that not only the matter is being reinvestigated at the complainant's instance but also she can avail of the alternative remedy of lodging a private complaint, with which 1 am not persuaded for the reason that irrespective of the fact that the order impugned is administrative in nature, the magistrate is not supposed to render his discretion subservient to the police dictate and to act in a pure mechanical fashion, rather is obliged to apply his independent mind to the facts adduced on the record by the investigating agency and to formulate his own opinion, which in the instant case admittedly is lacking; consequently, the impugned order is, set aside and the matter is deemed to be pending before the Court concerned who shall pass such order as may deem fit in accordance with law. The petition stands disposed of with no order as to costs", 6. It may be seen that the facts of the case in hand are quite distinguishable from the facts involved in the abovesaid authorities. The points involved in this case are that:-- 1. Respondent Mst. Noor Mai had filed F.I.R.for having been subjected to forcible sexual intercourse. 2. During the investigation she was found to be consenting party to the sexual intercourse. 3. A challan was submitted before the Cojir' against her and her paramour and his two companions under Section 10(2) of the Ordinance. 4. She had absconded, hence she was placed in Column No.2 with red ink as absconder in the challan. 5. She filed a complaint before the Court for offence under Section 10(3) against Murid Hussain and others. 6. On her application, the learned Additional Sessions Judge has transposed her from the column of accused to that of witnesses. On face of it, the authorities relied upon by the learned counsel for the respondents do not come to her rescue for the reasons:- (0 In PLD 1962 (W.P) Lahore 405, by second report under Section 173 Cr.P.C. the police had asked for cancellation of the earlier report. The Magistrate acceded to such request of the police. The Court found the order of cancellation s administrative one and held not to be amenable to revisional jurisdiction of the High Court or revisional Court. (h) In case reported in 1970 S.C.M.R. 178, the Supreme Court has observed that a Magistrate was competent to take cognizance of the case even though the report of the police was in negative. (iit) In case reported in PLD 1967 S.C. 425, the Supreme Court has held that Magistrate was competent to take cognizance under Section 190(b) of case of accused shown innocent in column No.2 of report submitted under Section 173 Cr.P.C. Here in the case in hand, accused was placed in column No.2 as an absconder. (/v) In case reported in PLJ 1974 Criminal Cases 553, the order of Magistrate cancelling, on police report, challan filed earlier was found not to be amenable to revisional jurisdiction of the Court. (v) In case reported in 1989 P.Cr.LJ. 903, taking of cognizance by Magistrate on negative report of police under Section 173 was not found to be defective one. (w) In case reported in PLJ 1985 S.C. 63, cancellation of challan by Magistrate on 2nd report was not found to be amenable to the revisional jurisdiction of the Court. (vii) In case reported in PLJ 1991 Lahore 247, the discharge of accused person on 2nd police report though found to be an order of administrative nature was yet set aside. It may be seen that no where in the above said authorities there is a slightest indication that a criminal Court has power to treat an accused person as a witness. It may be observed that in Criminal Procedure Code, no provision parallel to Order 1 Rule 10 C.P.C. is available to the Court whereby Court can strike out o add at its own discretion parties. In PLD 1962 Lahore 114, the Court has cberved:-- "Civil Procedure Code (V of 1908)--, O.I. R.10--Transposition of parties-­ Discretionary-Power may be exercised at any stage-Plantiff disagreeing with other plaintiffs and identifying himself with defendant—To be transposed to defendants' side". It may be pertinent to observe that once police submits report under Section 173 Cr.P.C., a Court has no jurisdiction to cancel it on its own instance but has to proceed with the case, to issue process, hold enquiry or trial, as the case may be. But the Court is competent to frame a charge or not as it finds fit. We are, therefore, inclined to observe that the leanred Additional Sessions Judge was obviously not competent to treat Mst. Noor Mai as a witness. The impugned order as such is illegal and without jurisdiction. Indeed in such cases where a complainant is aggrieved against police decision, he can lodge a complaint directly before the court against the culprits. In the instant case the complainant had rightly approached the court by filing a direct complaint. The police case and the direct complaint case were pending before the court of the learned Additional Sessions Judge. Respondent Mst. Noor Mai indeed had moved misconceived application before the court and succeeded in getting an illegal order which cannot be sustained. In such situation the learned Additional Sessions Judge while following the principle laid down in PLD 1966 SC 708 had first to proceed with the complaint case and then, if necessary, with the police case. The settled principle laid down therein is as under:— ' "The question how the two cases should be proceeded with so as to cause no prejudice to either party, is one of difficulty in the circumstances mentioned and has caused us some concern. The learned Advocate- General suggested that we might issue directions similar to those embodied by the Lahore High Court in the unreported case cited above. The learned Judges observed therein that it would be desirable, should the trial judge decide to hear first the case based on the Police version, to summon the witnesses supporting the counter version as Court witnesses under section 540-A of the Code of Criminal Procedure, so that the record contains all the relevant evidence. Similar procedure was directed to be adopted during the trial of the complaint case. After considering all aspects of the matter, we hold that a fair procedure would be for the learned trial judge to take up the complaint case first for trial. During that case the learned trial Judge may call the witnesses mentioned in the Police challan, if they were not already examined on behalf of the complainant, as Court witnesses under section 540-A of the Criminal Procedure Code, so that they can be cross-examined by both the parties. This will enable the Court to have the whole relevant evidence included in one trial and a decision could be arrived at after a proper consideration of the entire material relied on by the parties. The accused persons would in addition obviously have the right to adduce defence evidence if they so choose. If that trial results in a conviction, it will be for the Public Prosecutor to consider whether or not he should withdraw from the prosecution, with the permission of the Court, under Section 494 of the Code of Criminal Procedure, in the Police challan case. It would be easy for him to take such a decision after the whole evidence has been thrashed out in the first trial. If the first case ends in an acquittal, he might still have to consider whether the Police version has not been so seriously damaged by what has been brought out in the first trial, as to justify withdrawal of the prosecution. Otherwise the second trial would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilizing the material placed on the record of the earlier trial, by way of cross-examination of the relevant witnesses, as permitted by law. This procedure is being suggested to avoid a difficulty that might otherwise confront the complainant. If the Police challan is taken up first for trial, the complainant would be under a handicap in so far as he would not be in a position to cross-examine the witnesses for the prosecution". 7. In such view of the fact, we observe that the impugned order passed by the learned Additional Sessions Judge, Bahawalpur, on face of it, is illegal and is set aside. The case is remanded to the learned Additional Sessions Judge for disposal of the complaint case and then police case in accordance with the principle laid down in PLD J966 SC 708. These are the reasons of our short order dated 19.7.1993. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 FSC 126 [Appellate Jurisdiction] PLJ 1993 FSC 126 [Appellate Jurisdiction] Present: Mm hazar khan RHoso,CJ and na/ir ahmad bhatti. J. Mi-f.HAMIDAN BIBI-Appellant versus THE STATE-Respondent Criminal Appeal No.78/L of 1993, accepted on 20.5.1993 (i) Offence of Zina (Enforcement of Hudood) Ordinance, 1979(VII of 1979}- —S.13--Running of prostitution den—Offence of—Conviction for—Challenge to- -It had come in evidence that appellant had filed a writ petition against Police of same Police Station 5 days earlier to raid on her house—A fake customer who also happened to be a foot constable of same Police Station, was sent which would tantamount to luring appellant first to commit crime and then to implicate her in same-There were only two women in house and raiding police party consisted, of 8 members, but even then one girl escaped—There are reasons to believe that girl who allegedly escaped, did not exist—Held: Conclusion is that a false case was aiade against appellant—Appeal accepted and appellant acquitted. [P.128]A,C&D (ii) Practice and Procedure-- —Running of prostitution den-Offence of~Conviction for-Challenge to-In many cases, fake customers are sent to engage a girl for purpose of prostitution and then premises are raided and on solitary statement of fake customer, who is generally a subordinate Police Official, people are involved in heinous crime like prostitution entailing a very strict sentence of life imprisonment-Held: This practice is highly objectionable and it should be stopped forthwith. ['P.128JB Raja Muhammad Sabir, Advocate for Appellant. Mian Muhammad Bashir, Advocate for State. Date of hearing; 20.5,1993, judgment Nazir Ahmad Bhatti, J.--Sub Inspector Muhammad Younas of Factory Area Police Station received information on the night of 29.12.1989 that Mst. Hameedan Bibi appellant herein, was running a prostitution den in her house No.23/13-E, Nishler Park, Walton Road, Factory Area, Lahore and used to supply girls and that there was a girl in her house even at that time for that purpose. Thereupon the said Sub Inspector arranged a raiding party. He sent Said Akbar F.C, as a fake customer, and gave him two marked notes of Rs.50/- denomination each. The Sub Inspector also kept watch on the house. Some time thereafter the fake customer came back and informed him that the appellant had received the said currency notes and had offered one girl named Mst. Sakina Khan as a prostitute. The police party thereafter raided the house of the appellant, and recovered the aforesaid 2 currency notes, arrested the appellant but in the meantime the girl named Mst. Sakina Khan escaped. This al! happened at 12.45 in the night. On the morning of 29.12.1989 the Sub Inspector sent written report to the Police Station at 8.00 A.M for registration of the case. 2. After investigation the appellant was sent up for trial before the Additional Sessions Judge Lahore who charged her under Sections 13 and 14 read with Section 19 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to which she pleaded not guilty and claimed trial. After the conclusion of the trial the learned Additional Sessions Judge convicted the appellant under Section 13 of the Hudood Ordinance and sentenced her to life imprisonment, to suffer 10 tripes and to pay a fine of Rs. 5QOO/- or in default to further undergo rigorous imprisonment for one year. She has challenged her conviction and sentence by the appeal in hand. 3. It had come in evidence that the appellant had fded a writ petition in the Lahore High Court Lahore on 24,12.1989 against the said police officer of the aforesaid police station. The occurrence was alleged to have taken place 5 days after the filing of the writ petition. There was previously no complaint of such a nature against the appellant. A fake customer, who also happened to be a foot I constable of the same police station, was sent which would tantamount to luring I the appellant first to commit a crime and then to implicate her in the same. It is I very significant that there were only two women in the house and the raiding j police party consisted of eight police officials, inspite of that one girl escaped. We I have reasons to believe that the girl, who allegedly escaped, did not exist. 4, Recently many cases of such nature have come to our notice in appeal. Fake customers are sent to the houses to engage a girl for the purpose of prostitution and then the premises are raided and on the solitary statement of a fake customer, who is generally a subordinate police official, people are involved in such a heinous crime as prostitution entailing a very strict sentence of life imprisonment. We have on several occasions made observations that this course of action adopted by the police is unlawful. People cannot be first lured to commit a crime and then to implicate them for the commission of the same. This practice is highly objectionable and it should be stopped forthwith. 5. After going through the entire record of the case we have come to the conclusion that a false case was made out against the appellant. It is a matter of great regret that innocent people are being involved in false cases by the police in PI order to take revenge. The duty of the police is to protect life, property and honour of innocent people but instead the police are involving them in false cases. This is not only shameful but is very regretable. The superior police officers should take note of such high handedness activities of the subordinate police i officials. 6. We accordingly accept the appeal and set aside the conviction and ' sentence of the appellant recorded on 23.2.1993 by the learned Additional ; Sessions Judge Lahore. She is acquitted of the offence for which she was convicted ! and sentenced. She is present on bail. Her bail bonds stand discharged. 7. A copy of this judgment shall be sent to the Inspector General Police Punjab for taking strict disciplinary action against Sub Inspector Muhammad Younus who was complainant of this case. (MBC) (Approved for reporting) Appeal accepted. THE END

PLJ 1993 Lahore 257 PLJ 1993 Lahore 257 Present: MIAN GHULAM AHMAD.J MUHAMMAD ASHRAF SHEIKH - Petitioner versus M/s AEROFLOAT AIR LINES, LAHORE, and another - Respondents Civil Revision No. 1252 of 1981, accepted on 20.12.1992 (approved for reporting on 13.1.1993) Civil Procedure Code, 1908 (V of 1908) O.VI R. 17 — Plaint ~ Amendment of — Prayer for — Rejection of — Challenge to — Amendment in pleadings can be allowed at any stage of proceedings to secure and serve ultimate ends of justice — Discretion has to be liberally exercised without, of course, trampling legitimate interests of other party — Details of claim had been set out in plju'nt after mathematically working out amount and initially suit for recovery of that specific amount should have been filed -- When plaintiff realized this fact at time of preferring first appeal, he hastened to make application for conversion of his claim of rendition of accounts into one for recovery of ascertained amount ~ Held: Proposed amendment will not drastically or prohibitively alter character or complexion of suit — Amendment allowed. [Pp.259 & 260 ]A,B&C Mr. Fazal-e-Miran Chohan, Advocate for Petitioner. Mr, Ghulam Haider Al-ghazall, Advocate for Respondent No.2. Respondent No.l: Absent. Date of hearing: 21.12.1992. JUDGMENT Muhammad Ashraf Sheikh, as sole proprietor of M/s United Trading Establishment, Gardee Trust Building, Lahore had, on 2.4.1977, filed a suit for rendition of accounts against M/s Aerofloat Air Lines and Pakistan International Air Lines, stating that certain consignment of goods (600 dozens of children sleeveless slips), booked at Lahore, on 1.6.1976, for carriage to Tripoli, Libya, did not reach the destination. Defendant No.l, having provided air carrier through defendant No.2, did not furnish any satisfactory explanation or information about the missing consignment. For acts of omission and commission on the part of the defendants, the plaintiff pleaded to have suffered losses, and the defendants were bound to compensate him adequately, it was so urged by the plaintiff. The defendants were also under a legal obligation to account for the goods and the value thereof. This required rendition of accounts on the part of the defendants, according to the plaintiff. 2. The suit was contested by both the defendants. Mr. Riaz Ahmad Chaudhry, Civil Judge, Lahore, on 20.5.1979, rejected the plaint, holding that it did not disclose a cause of action; and appeal was filed by the plaintiff on 6.2.1980, for having the aforesaid order set aside. Alongwith the appeal, which was entrusted on 6.2.1980 to Rao Muhammad Hayat, Addl. District Judge, Lahore, the plaintiff submitted an application under Order VI, rule 17, read with Section 151 CPC, for amendment of the plaint, but the same was rejected on 30.3.1981. The present revision petition has been preferred against that order. 3. Learned counsel for the respondents, who had opposed this application in the courts below, has put up resistance against the revision petition as well, urging that it is a mala-fide move on the part of the plaintiff, inasmuch as without payment of proper court-fee for his claim, the plaintiff had instituted the suit under a different garb and not in proper form, and it was also pointed out that the move was a belated one, as throughout the proceedings of the suit before the Civil Judge, no such prayer had been made, and for the first time request for amendment of the plaint was made by the plaintiff to the first appellate court and that too with no genuine object and with no sound basis. It was also contended that the question of limitation would be involved and plaintiff's claim for recovery of money could, by no standard, be treated to be within time. 4. I am amused to hear the learned counsel for the respondents pointing out that the amendment proposed to be made does not seek to correct any typographical error or a clerical mistake. It is well known that provisions of Order VI rule 17 CPC do not cover only errors of such minor nature, and changes involving major shift in the stand of a party or embracing far-reaching implications may even be allowed, in the larger interests of justice, and keeping in mind, of course, interests and rights of the other party. I would, however, agree with the learned counsel that the plaintiff, in having couched his prayer, as one for rendition of accounts did not exercise, at the relevant time, proper care, and his counsel did not frame fundamental plea and consequential prayer in the manner as was dictated by the facts and circumstances of the case. In the mind of the learned counsel for the plaintiff, at that time, could also exist a lurking desire to escape heavy liability in terms of payment of huge amount of court-fee. But even in a bonafide manner, the plaintiff, or his counsel, might have been induced to believe that since two Air Lines were involved and his claim required an extensive probe, the situation would warrant settlement of his claim in the manner of rendition of accounts. 5. The fact remains that amendment in pleadings may be allowed at any stage of the, proceedings to secure and serve ultimate ends of justice. Procedural provisions have to be invoked and interpreted with the aforesaid ends in view and must be subordinated to the object of dispensation of justice for securing which the entire judicial system has been involved and is functioning. Discretion that vests in the court, in the sphere in question, has to be liberally exercised, without, of course trampling the legitimate interests of the other side. In para 7 of the plaint the plaintiff had set out details of his claim, confining his demand to a well defined and mathematically worked-out amount (Rs. 10,25,500/-). Initially, as already said, suit for recovery of that specific amount should have been filed. When such realisation dawned upon the plaintiff, at the time of preferring first appeal, he hastened to make a prayer that he be permitted to convert his claim for rendition of accounts into one for recovery of an ascertained amount. 6. I do not think that the learned Add!. District Judge had given sound reaso s in rejecting the prayer and his approach to the issue was logically and legally sane. Claim for recovery of money cannot be considered to have been made at the juncture when the amendment is allowed; it will take effect from the date of institution of the suit. Similarly the propsoed amendment will not drastically or prohibitively alter the character or complexion of the claim, which will substantially remain the same, as has originally been pleaded by the plaintiff. It j would be a fallacy to urge that the intended alteration in the plaintiffs prayer will give rise to multiplicity of litigation; it would indeed be an effort to curtail and confine the same to one suit; and if contrary course is adopted, it will lead to complication of the matter, as also to dichotomy or duplicity of the basic plea and substantial prayer. For furthering the ends of justice the amendment asked for ought to have been allowed. 7. The impugned order dated 30.3.1981, in consequence of above discussion, is set aside, and the revision petition is accepted, although with no order as to costs. The amended plaint shall be filed in the trial court. The order rejecting the plaint passed by the Civil Judge is not before me, nor has the record of the case been requisitioned. Since amendment of the plaint Will require re-appraisal of the issue and renewed resolution of the controversy between the parties, the matter shall be decided afresh on merits, and for the purpose the learned Senior Civil Judge, Lahore , will keep the case with him or will entrust it to any other experienced Civil Judge. Parties shall appear before the learned Senior Civil Judge, Lahore, on 15.1.1993. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 260 PLJ 1993 Lahore 260 Present: FAZAL KARIM, J MIAN MUHAMMAD and 4 others -- Petitioners versus ALLAH DITTA - Respondent Civil Revision No. 1512 of 1992, dismissed on 17.11.1992 (approved for reporting on 20.12.1992) v Puiyab Pre-emption Act, 1991 (IX of 1991) S.5 read with Punjab Pre-emption Act, 1913, Section 4-Pre-emption — Suit for — Whether court has no power to determine whether transaction of gift is sale in disguise — Question of — Provision of Section 4 of 1913 Act namely "nothing in this section shall prevent a court from holding that an alienation purporting to, be other than a sale, is in fact a sale" is omitted in 1991 Act, but it is wrong to say that omission of this provision was intended to bring about a change in law — Power to determine real nature of transaction always resided in courts and Section 4 of 1913 Act did not vest any such power on courts — Legislature must be presumed to have omitted said provision being unnecessary and redundant -- Petition dismissed. [Pp.263 & 264 ]A&B Malik Sher Bahadur, Advocate for Petitioners. Mr. Muhammad Hanif Khatana, Advocate for Respondent. Date of hearing: 7.11.1992. JUDGMENT The question that falls for determination in this petition under Section 115 C.P.C. is whether in view of the provisions of Section 5 of the Punjab Pre-emption Act, 1991, the Court has no power to determine the real nature of the transaction sought to be pre-empted. 2. The land in suit was purportedly transferred by way of gift by the first defendant, Mian Muhammad, in favour of Muhammad Sher and others, defendants, petitioners herein, by means of a deed dated 10.9.1991. The respondent, Allah Ditta, sued to pre-empt the sale, his case being that the transaction was in fact one of the sale but it was disguised as a gift to defeat his right of pre-emption. 3. Under the Punjab Pre-emption Act, 1913, Section 4, the right of pre­ emption was a right of person "to acquire agricultural land or village immovable property or urban immovable property in preference to other persons" and could "in respect of such property only in the case of sales or of foreclosures of, the right to redeem such property". Section 4 of that Act enacted further: "Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sate is in fact a sale". 4. In the well known case of Government of N. W.F.P. v. Said Kamal Shah (PLJ 1986 S.C. 576), it was held that the provisions of the Punjab Pre-emption Act, 1913, including Sections 15 and 16, were repugnant to the Injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet and specified 31.7.1986 as the date on which that decision was to take effect. To bring the pre-emption law into conformity with the Injunctions of Islam, the Governor of the Punjab made and promulgated the Punjab Pre-emption Ordinance 1990. By Section 5, sub-section (1) thereof, it was enacted that "the right of pre-emption shall arise in case of sale of immovable property"; and sub-section (2) thereof said: "Nothing contained in subsection (1) shall prevent a Court from holding that an alienation purporting to be other than sale is in fact a sale". It will be seen that subsection (2) of Section 5 of the Punjab Pre-emption Ordinance, 1990 was a re-enactment of that provision as contained in Section 4 of the Punjab Pre-emption Act, 1913. 5. The Punjab Pre-emption Ordinance, 1990, was repealed by the Punjab Pre­ emption Ordinance, 1990 and the latter Ordinance was repealed by the Punjab Pre­ emption Act, 1991. It is under the Punjab Pre-emption Act, 1991 that the suit, out of which this revision petition has arisen, was instituted. 6. Section 5 of the Punjab Pre-emption Act, 1991, enacts: "The right of pre-emption shall arise in case of sale of immovable property"; in it the words "nothing in this Section shall prevent a Court from holding that an alienation purporting to be other than a sale is in fact a sale" of Section 4 of the 1913 Act and subsection (2) of Section 5 of the Punjab Pre-emption Ordinance, 1990 which said "nothing contained in subsection(l) shall prevent a Court from holding that an alienation purporting to be other than sale is in fact a sale" were not re-enacted. 7. Upon the omission of the legislature to re-enact this provision is founded the argument that the intention of the legislature was that the Court must take the transaction as it purports to be and that it has now no power to determine its real nature. The learned Civil Judge was of the view that with the deletion of the provision "under which the courts were empowered to determine the exact nature of the transaction, now it is very clear that any transaction which is not a sale cannot be pre-empted". The learned Additional District Judge was, however, of the view that "omission of above provision regarding holding of any particular transaction other than the sale to be a sale in fact, from the Punjab Pre-emption Act, 1991, did not curtail the authority of the court to hold any transaction of gift or exchange etc., to be a sale in fact". In his view the provision in the Punjab Pre­ emption Act, 1913, and in the Punjab Pre-emption Ordinance, 1990, referred to above, "was simply an explanation but not any authority for the court to decide such question. After omission of the above provision, no further provision has been made in the Act to debar the court, which is a civil court, from deciding such question". It was, so held (by) the learned Additional District Judge, open to the pre-emptor "to show that the transaction is really one of sale and is fraudulently made to appear as one of gift". He held further that the expression "sale" as defined in the Punjab Pre-emption Act, 1991, included hiba hi I iwz or hiba ba shart-uliwaz and it had yet to be decided " on evidence as to whether the above ostensible gift of property in suit falls or not within the above two kinds of gift". 8. The courts have always, in pre-emption cases, recognised a distinction between a device and a disguise and it has always been regarded as well settled |aw that the courts have the power to look to the real nature of the transaction. The principles that applied to such cases, were, if I may say so with respect, ably summarised in Ch. Ghulam Ahmed Khan vs. Diwan Sheikh Ghulam Qutab ud Din (PLD 1960 (W.P.) Lahore 461, 468) as follows:- "A sale, for instance, may be disguised as a mortgage or hiba-biliwaz. When this is done, evidence can be led to reveal the real nature of the transaction by taking off the mask from the face of the transaction, so that the court may discover whether the right of pre­emption 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 utilized 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 stratatgem which is real and not false". 9. It is in the light of these principles that the question ot" the interpretation of Section 5 of the Punjab Pre-emption Act, 1991, and the effect of the omission to re-enact the provision of Section 4 of the Punjab Pre-emption Act, 1913, namely, "nothing in this Section shall prevent a Court from holding that an alienation purporting to be other than a sale is in fact a sale" should be considered. Section 4 of the 1913 Act, itself, gave no power to the Court to hold that an alienation | purporting to be other than a sale was in fact a sale; all that it did was to recognise j that in pre-emption cases, such questions do arise and that there is power in the Court to determine the real nature of the transaction. It is, therefore, wrong on j principle to say that the omission of this provision in Section 5 of the Punjab Pre- j emption Act, 1991, was intended to bring about a change in law. For, if the power! to determine the real nature of the transaction has always resided in the Courts and \ the Courts were not vested with that power by that provision in Section 4 of the Punjab Pre-emption Act, 1913, then there is no question of that power having been taken away by the omission to re-enact it in Section 5 of the Punjab Pre-emption Act, 199K The legislature must, therefore, be presumed to have omitted that provision because it was unnecessary and redundant. 10. It is difficult to ascribe to the legislature the intention to take away that power for yet another reason. It is that, as has been noticed above, the purpose of the Punjab Pre-emption Act, 1991, was to bring the law relating to pre-emption in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, The presumption is that the legislature does not encourage fraud and deception; that presumption is stronger where the object 'of the enacted law is to give effect to the Injunctions of Islam. There should be no doubt that to accept the contention of the petitioners' counsel that the effect of the omission was to affect the power of the Court to determine the real nature of the transaction would be to encourage the parties to the sale transactions to perpetrate fraud and deception to defeat the right of pre-emption by merely disguising the transaction as one which it really is not. Such a disguise would, if the contention is accepted, be sufficient to defeat the right of pre-emption, for so runs the contention, the courts are now powerless to determine its real nature. 11. For these reasons, I hold that the learned Additional District Judge was right in taking the view that despite the omission of the provision, namely, "nothing in this Section shall prevent a Court from holding that an alienation purporting to be other than a sale is in fact a sale", as contained in Section 4 of the Punjab Pre­ emption Act, 1913, and similar provision in Section 5 of the Punjab Pre-emption Ordinance, 1990, the civil courts have the power to determine the real nature of the transaction. Accordingly, the revision petition is rejected but the parties are left to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 264 PLJ 1993 Lahore 264 Present: GUL ZAPIN KIANI, J SHER MUHAMMAD and another —Petitioners versus GHULAM MUHAMMAD — Respondent Civil Revision No.l201-D of 1981, accepted on 23.12.1992 (approved for reporting on 13.1.1993). Civil Procedure Code, 1908 (V of 1908) O.VII R.ll — Pre-emption — Suit for — Dismissal of suit by appellate Court — Challenge to — Appellate Court dismissed suit on account of late payment of court fee — Neither superior right of pre-emption nor price payable was in dispute — It is a settled principle that without prior determination of court fee payable on a document and allowing reasonable opportunity for its payment, neither plaint could be rejected nor appeal dismissed — Question of limitation was not at all involved — There was neither negligence nor contumacy in matter of payment of court fee — Held: It was a fiscal matter between suitor and State and it did not arm an adversary with a weapon for striking his opponent out of court — Petition accepted and order of trial court restored. [P.266 JA&B Ch.Inayatullah Cheema, Advocate for Petitioners. Mian Ghulam Hussain, Advocate for Mr. S.M. Tayyab, Advocate for Respondent. Date of hearing: 23.12.1992. JUDGMENT Civii Revision by the plaintiffs arose from a pre-emption suit. It was decreed by the trial Court, in favour of the plaintiffs, on 8.3.1980. Pre-emption price was fixed at Rs. 17500/-. It was required to be deposited before 3.5.1980, by the decree of the trial Court. In appeal, this decision was reversed, and, pre­ emption suit dismissed on 23.5.1981, by the learned Additional District Judge, Sargodha, on short score of delayed payment of court-fee on the plaint. Thereupon, a civil revision was preferred by the plaintiffs. It was admitted, on 6.4.1982, to examine the effect of delayed payment of court-tee on the decision of the pre­ emption suit in favour of the plaintiffs. Short facts for the decision of the civil revision are:- 11 kanals, 10 marlas of land at village Kot-Kamboh, in Tehsil Shahpur of District, Sargodha was owned by Bakhsha son of Channan Din. By a sale-deed, registered on 22.6.1977, Bakhsha sold his above land to Ghulam Muhammad for a sum of Rs. 17500/-. Sher Muhammad and Muhammad Nawaz, as real brothers of the vendor, and, co-owners of the land with him claimed pre-emption in respect of the above sale. Pre-emption suit was instituted by them on, 1.6.1978. Para-6 of the plaint assessed the value for purposes of court-fee and jurisdiction at Rs. 1100/-. Since the required amount of court-fee stamps were not available, adhesive court-fee stamps of the value of Rs.2.25 were affixed upon the face of the plaint. It was averred that deficiency in the payment of court-fee shall be made good. On 3.6.1978, suit was registered and the plaintiffs were called upon to have prepared Fard-Khalis Munafa, till 3.7.1978 for filing of it in the trial Court. Since the statement of annual net-profits could not be prepared till the due date, plaintiffs requested for further time. This time the trial Court gave them till 31.7.1978. On the above date of hearing, plaintiffs submitted the statement of annual net profits and paid court-fee in the sum of Rs.539.60. Thereupon, the trial Court recorded the following order on its file:- " Farad Khalts Munafa has been filed and in accordance therewith deficiency of court fee to the tune of Rs.539.60 too has been made good. In para No.6 of the plaint valuation of the suit may, therefore, be corrected and summons issued to the defendant for 11.10.1978, on payment of process fee within two days. A sum of Rs.3500/- be deposited before the said date by way of zar-i-panjam". On 13.12.1978, vendee-defendant submitted an application for rejection of the plaint of the pre-emption suit, under Order VII, rule 11 CPC, for delayed payment of court-fee for a pre-emption suit. Plaintiffs submitted their reply and resisted the application. On 3.6.1979, the trial Court rejected the application, in a vernacular order. It was observed that the court-fee had already been paid in accordance with the terms of statement of annual net-profits, in obedience to the order of the Court. Thereafter, the vendee submitted his written statement and contested the pre­emption suit. Apart from controverting the averments in the plaint of the pre­ emption suit, an objection as to the incorrect valuation for the purposes of court-fee and jurisdiction was reiterated on 23.6.1979. The trial Court framed as many as eight issues inclusive of relief. Issues contained also an objection about the erroneous valuation also. Parties gave evidence in support of the above issues. On 8.3.1980, the trial Court decreed the pre-emption suit. In appeal, only point agitated was about the decision on issue No. 1. It reads as:- "Whether the plaint is liable to be rejected under Order VII, rule 11 CPC7OPP." Obviously, the issue was relatable to late payment of court-fee as indicated above. Learned appellate Judge made a mountain out of a mole-hill and allowing the appeal, dismissed the pre-emption suit on this score alone. Neither the superior i right of pre-emption was in dispute nor the price payable for the land. Plea of i estoppel was also not established. In verity, no other point, except the one relating i to delayed payment of court-fee was urged and taken note of in the Court below. It | is a settled statement that without a prior determination of the amount of court-fee ^payable on a document and allowing a reasonable opportunity for its payment, neither the plaint could be rejected, nor, the appeal dismissed. Question of {limitation was not at all involved in the process. Further, there was neither i negligence nor contumacy in the matter of payment of court-fee by the plaintiffs. i Even after expiry of the time fixed, the Court was empowered to further extend the | time for payment of court-fee. It was really a fiscal matter between a suitor and the | State. It did not arm an adversary with a weapon for striking his opponent out of i Court. Recently, the Courts have adopted a more favourable view on the question of court-fee payable on documents used in the Courts. The State had already received its share of revenue from the plaintiffs for rendering justice to them. Defendant was in no way prejudiced in the act of the trial Court giving time for payment of court-fee to the plaintiffs. No other point was urged and the one agitated here was found favourable to the plaintiffs. In view of the foregoing discussion, Civil Revision is allowed; impugned judgment and decree of the learned Additional District Judge dated 23.5.1981 are set aside and those of the learned trial Court restored to operate in accordance with law. There shall be no order as to costs in this Court. Original records be returned. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 267 PLJ 1993 Lahore 267 Present: FAZAL KARIM, J £>r.ARSALAN RAZZAQ — Petitioner versus ALI HUSSAIN — Respondent Civil Revision No. 1594 of 1992 (also F.A.O. No.201 of.1992) decided on 10.12.1992 (approved for reporting on 21.12.1992) (i) Civil Procedure Code, 1908 (V of 1908) O. XXXIX Rr. 1 & 2 — Application for ejectment of tenant and suit for specific performance of agreement to sell ~ Application for temporary injunction — Order of deposit of consideration money — Challenge to — No injunction order had been made in favour of petitioner/appellant — Respondent denied execution of agreement to sell and payment of part of sale consideration — Held: Order requiring petitioner/appellant to deposit sale consideration of Rupees ten lacs, should not have been made - Appeal accepted. [P. 270 ]C (ii) Consolidation Application for ejectment of tenant and suit for specific performance .of agreement to sell -- Consolidation of -- Challenge to — Whether two matters could be consolidated — Question of — Provisions of Section 151 CPC are attracted where there is no express provision in Code and where procedure in Code is being abused to obstruct ends of justice — True that proceedings under Ordinance are not a suit, yet they are proceedings of a civil nature ~ Held: Senior Civil Judge having inherent powers under Section 151 CPC in suit for specific performance had power to consolidate two matters and fact that one matter was civil suit and other eviction petition, could not effect that power — Held further: Consolidation of two matters and their decision by consolidated judgment would be fair to both parties. [Pp. 269 & 270 JA&B Malik Muhammad Azam Rasool, Advocate for Petitioner/Appellant. Mr. Muhammad Rashid Ahmad, Advocate for Respondent. Date of hearing: 28.11.1992. JUDGMENT This will dispose of C.R.No.1594 of 1992 and F.A.O.No.201 of 1992, both by Dr. Arsalan Razzaq, petitioner (hereinafter to be called the petitioner). They have arisen out of an order of the learned Senior Civil Judge, Lahore, dated 10.10.1992 which order disposed of two applications, one under Section 94 read with Section 151 C.P.C. and the other under Order 39, Rules 1 and 2 C.P.C. 2. The property in question, a shop situate at Jail Road, Lahore, is owned by the respondent, Ali Hussain. The latter made an application under Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred to as the Ordinance) for the eviction of the petitioner, Dr. Arslan Razzaq, his case in that application being that the petitioner had obtained the shop as a tenant on a monthly rent of Rupees ten thousand. He sought the eviction of the petitioner on ground of non-payment of rent and personal requirement etc. The petitioner filed a written reply pleading that the respondent had agreed to sell the shop in question to him by means of an agreement of sale dated 23.4.1991 and that the relationship of landlord and tenant did not exist between the parties. Later, the petitioner also instituted a suit for the specific performance of the agreement of sale dated 23.4.1991. 3. In his written statement, the respondent denied that he had executed any agreement of sale in favour of the petitioner or that agreement had the effect of putting an end to the relationship of landlord and tenant. 4. By this application under Section 94, read with Section 151 C.P.C., the petitioner prayed that in the interest of justice, the proceedings in the eviction application should be stayed during the pendency of the suit for specific performance and by his application under Order 39, rules 1 and 2 C.P.C., the prayer made was that "till the decision of main suit the respondent may very kindly be temporarily restrained from selling — alienating or transferring the shop to any body else except the petitioner or creating any charge on the shop in dispute and dis-possessing/ejecting the petitioner from the shop in dispute in any manner whatsoever". The learned Senior Civil Judge was of the view that "both the cases be heard and disposed of simultaneously, so that right of none of the parties stands prejudiced by the act of the court. "He, therefore, decided by his order dated 10.10.1992 "to consolidate the proceedings of both the cases because the question involved in both the cases is interconnected because of the fact that the respondent in the ejectment petition has denied the existence of the relationship of landlord and tenant on the basis of the alleged agreement to sell. The alleged agreement to sell if proved or disproved then it would definitely have a direct bearing upon the acceptance or rejection of the ejectment petition". As regards the other application, the learned Senior Civil Judge agreed with the respondent's counsel that the petitioner should deposit Rupees ten lacs (that being the sale consideration mentioned in the sale agreement dated 23.4.1991) "in the court within one month from this date otherwise legal consequences shall follow and there shall be no order for the injunction against Ali Hussain as prayed for by Dr. Arsalan Razaq". 5. Having so disposed of the applications, the learned Senior Civil Judge proceeded to frame the consolidated issues; it appears also that the learned Senior Civil Judge ordered the proceedings to be recorded in the eviction application. 6. The question raised in C.R.No.1594 of 1992 was whether the learned Senior Civil Judge was competent to order the consolidation of the two matters, one under the Ordinance and the other under the Code of Civil Procedure and his prayer in F.A.O. No.201 of 1992 is that the "order dated 10.10.1992 passed by the Senior Civil Judge Lahore to the extent it directs the appellant to deposit Rs. 10,00,000/- in the court may kindly be set aside or in the alternative the amount to be deposited by the appellant may kindly be reduced to Rs.5.50 lacs the amount still to be paid under the agreement to sell". 7. As to the question in the civil revision, learned counsel for the petitioner argued that as the proceedings have been ordered to be ecorded in the eviction petition, the petitioner's suit for specific performance will virtually be tried by the Rent Controller and that it may well be that the petitioner is deprived of his remedies under the Code of Civil Procedure. Learned counsel for respondents pointed out that the petitioner had been trying to delay the decision of the eviction application, so much so that he made 14 applications at different times; one of those applications, it was stated, was to the learned District Judge, Lahore, for a direction that the two matters be heard by the same Court. 8. It appears that the order consolidating the two matters was made under Section 151 C.P.C. That Section saves the inherent powers of the Court to "make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court". The reason why this power to prevent the abuse of the process of the Court is recognised to exist was stated by Lord Denning MR in Goldsmith V. Spemngs Ltd. (1977) 2 All E.R. 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 justice 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 intervene 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". Further, the ultimate object of all procedural rules is to ensure that there should be a fair trial according to law; the fair trial is not all one sided; it means fairness to both the parties. 9. There can be no doubt that in the suit for specific performance, the learned j Senior Civil Judge had the inherent power to consolidate the two matters and the! fact that one of the matters was a civil suit and the other an eviction petition under the Ordinance, could not in my opinion afftect that power. The provisions of Section 151 C.P.C., it is well settled, are attracted where there is no express provision in the Code and where the procedure as laid down in the Code is being abused to obstruct the ends of justice. As Vf as said by that eminent Judge Mehmood JJ, "courts are not to act upon the principle that every procedure is to be taken to be i prohibited by law unless it is expressly provided for by the Code, but on the jconverse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law. As a matter of general principle, prohibition cannot ibe presumed". As there is no provision in the code of Civil Procedure for the !consolidation of matters, the learned Senior Civil Judge acted within his powers to I consolidate the two matters. True, that the proceedings under the Ordinance are not la suit, yet they are proceedings of a civil nature. 10. It seems to me that the procedure adopted by the learned Senior Civil Judge in consolidating the two matters would ensure fairness to both the parties. The eviction application was made earlier in point of time. The respondent denies the i execution of the agreement of sale in favour of the petitioner and the agreement is, according to him, a forged document. To stay the proceedings in the eviction application and to decide the suit for specific performance first would most I probably result in extraordinary delay in the decision of the eviction application. ' Civil suits are known to take very long to decide and if the Court finds that the i agreement, upon which the petitioner's claim to specific performance is founded, is a forged document, the staying of the proceedings in the eviction application would amount to allowing the petitioner to take advantage of his own wrong. The consolidation of the two matters and their decision by a consolidated judgment would, therefore, be fair to both the parties. 11. For these reasons, I do not find any merit in Civil-Revision No. 1594/92 and dismiss it. 12. As regards F.A.O. No.201 of 1992, the order requiring the petitioner to deposit the sale consideration of rupees ten lacs should not, in my opinion, have been made. No injunction order had been made in favour of the petitioner. The respondent denied the execution of the agreement of sale and the payment of a part j of the sale consideration. I would, therefore, accept the appeal and set aside this (part of the order of the learned Senior Civil Judge, dated 10.10.1992. 13. It ought to be mentioned here that at the admission stage, learned counsel for the appellant had offered to deposit the sum of Rs,.5.50 lacs, which according to him, remains to be paid by him to the respondent. If that sum has been deposited, it will be for the appellant to allow that to remain deposited or not. MBC) (Approved for reporting) Orders accordingly.

PLJ 1993 Lahore 270 PLJ 1993 Lahore 270 Present: KHAL1D PAUL KHAWAJA, J Mxt. SARDARAN BIBI — Petitioner versus TAJ DIN — Respondent Civil Revision No.l296-D of 1988; dismissed on 7.12.1992. (i) Civil Procedure Code, 1908 (V of 1908) S.I 15 — Suit for declaration — Decree passed in and upheld by appellate court — Challenge to -- Respondent is an illiterate villager and was about 80 years old at time of alleged execution of gift deed — Proof of execution of gift deed should have consisted of unimpeachable evidence — He had seven daughters and no son -- Question arises as to why did he gift away his entire land to one daughter by excluding other six — In gift deed, it is stated that he had no daughter except petitioner — Had respondent executed gift deed, he would not have made such a mis-statement — Held: As view taken by courts below was possible no interference in revisional jurisdiction with concurrent findings is called for. [P. 274 ]A (ii) Gift Landed property — Gift of — Gift challenged in suit being fraudulent — Suit decreed and decree upheld by appellate court — Challenge to — There is sufficient evidence on record to establish that possession, physical or constructive, of land in dispute was never transferred under gift to petitioner -- Contention that under Muslim Law, it is not always necessary for donor to physically part with possession of property — Delivery of possession is not necessary v here gift is from a father to his minor son or by a guardian to his ward — In this case, land was in possession of tenants who were attorning to respondent and not to donee ~ Held: Courts below were justified in holding that gift in question was incomplete and thus invalid — Held further: Concurrent findings on pure question of fact are not assailable in revision — Petition dismissed. [Pp.274 & 275 ]B&C PLD 1987 Lahore 1087 distinguished. Mr. Muhammad Sarwar Awan, Advocate for Petitioner. Ch. Muhammad Sadiq, Advocate for Respondent. Date of hearing: 7.12.1992. JUDGMENT This revision petition is directed against the judgment dated 26.6.1988 whereby the learned Additional District Judge-Il,. Okara dismissed the petitioner's appeal against the judgment and decree dated 6.3.1988 by virtue of which the learned Civil Judge Dipalpur had decreed the respondents' suit for declaration and consequential relief. 2. The brief facts which gave rise to the present revision petition are that on 23.12.1985 Taj Din respondent instituted a suit against his daughter Mst. Sardaran Bibi petitioner for a declaration to the effect that he was the owner in possession of the suit land measuring 170 kanals 14 marlas fully detailed in para No.l of the plaint) and that the registered gift deed dated 23.1.1985 purporting to have been executed by him in her favour was fake, fictitious and the result of misrepresentation. By way of consequential relief he sought the issuance of permanent injunction to restrain ,the petitioner from interfering with his possession over the said land. It was asserted in the plaint that the respondent was an old man who had no male issue and had only seven daughters including the petitioner. The petitioner's husband, who was a clever person, had forged a fake gift deed showing that the respondent had gifted the suit land to the petitioner. The respondent maintained that he had never executed the said gift deed nor did he appear before the Sub-Registrar at the time of the registration of the said deed. He further asserted that he had never got the suit land mutated in favour of the petitioner. 3. The petitioner resisted the suit and maintained that the respondent had himself got the gift deed in question executed in her favour and that he had also appeared before the Sub-Registrar at the time of registration of the said document. She further claimed that the possession of the suit land was also transferred to her under the said gift. She also raised a number of legal objections which are reflected in the following issues:- 1. Whether the plaintiff is estopped to file the present suit by way of his words and conduct: OPD 2. Whether the suit is not maintainable in its present form? OPD 3. Whether the suit has been incorrectly valued for the purposes of court fee and jurisdiction ? If so, to what effect? OPD 4. Whether the suit is malqfide and collusive and that the defendant is entitled to receive special costs from the plaintiff? OPD 5. Whether the impugned "Hiba" dated 31.12.1985 is fictitious, illegal and ineffective and also mutation'-No.582 dated 28.3.1985 is void, cancelled and ineffective qua the rights of the plaintiff? OPD 6. Whether the plaintif is entitled to the relief prayed for? OPP 7. Relief. 4. The parties produced their oral as well as documentary evidence on the above issues. The respondent's suit was decreed against the petitioner by the learned trial court. She lodged an appeal but the same was" dismissed by the learned appellate court. 5. By this revision petition the petitioner has called in question the propriety of the decisions of the two courts below. 6. I have heard the Seamed counsel for the parties and have also gone through the record. 1. The concurrent findings of the two courts below are to the effect that execution of the gift deed in question had not been proved and even otherwise the gift in question was invalid because of the non-delivery of the possession of the land in question by the donor to the donee. 8. Learned counsel for the petitioner has contended that there was sufficient material on record to show that the gift deed in tpestion was genuine and had been duly proved through reliable evidence and that as the parties were living together the delivery of the possession of the land in dispute by the respondent to the petitioner was not necessary and thus the gift in question could not be held to be invalid on that count, learned counsel submitted that the learned courts below had misread the evidence and had reached incorrect conclusions. Conversely, learned counsel for the respondent has defended the impugned judgments and decrees. 9. Exh.D.l is the gift deed in question. Its certified copy Exh.P.2. has also been placed on record. The document shows that it was executed on 23-1-1985 and was registered on the same day. Sh.Noor Din DW. 2 is its scribe while Doona DW.4 and Shah Muhammad DW.5 are the two attesting witnesses of the said document. DW.l Hamad Baig was the Sub-Registrar before whom the registration procedure had taken place. Mst. Sardaran Bibi petitioner had appeared as DW.3. The DWs have supported the petitioner's case i.e. that Taj Din respondent had executed the gift deed Exh. D. 1. and had put his thumb mark on it and that he had also appeared before the Sub-Registrar for the registration of the said deed. 10. Taj Din respondent appeared as PW.l and denied having executed the gift deed Exh.D.l. He categorically stated that he never gifted any land to the petitioner and asserted that the gift deed in question was a forged and fabricated document. The deposition of Ali Muhammad PW.2 who is a cousin of respondent, is to the effect that the petitioner and her husband had obtained his thumb impressions on certain papers on the pretext that they had to obtain some loan. He urther stated that subsequently he came to know that his thumb impression was also obtained on the registered deed in question whereby Taj Din respondent had been defrauded and deprived of his land and that thereafter (on 25.9.1986) he swore an affidavit Exh. P. 1 before a Magistrate to the effect that the registered gift deed was fake and the result of fraud and misrepresentation. PW.3 Ghulam Murtaza who owns land near the land in dispute stated that the respondent was in possession of the said land. PW.4 Noor Muhammad grand-son of the respondent stated that he was cultivating the suit land as a tenant under the respondent and was paying Batai to him. It has not been proved that the thumb impression on Exh.D.l purporting to be that of the respondent was actually his thumb impression. The disputed thumb impression (on Exh. D.I) was sent to the Finger Print Expert in the Finger Print Bureau alongwith the admitted thumb impressions of the respondent for comparison. The expert reported that the thumb impression on the gift deed in question was not clear enough to permit comparison with the admitted thumb impression in minor details and thus no opinion could be given. I 12. Taj Din respondent, who is an illiterate villager, was about 80 years old at 'the time of the alleged execution of the gift deed. In such a case the proof of the execution of the gift deed should have consisteU of unimpeachable evidence which should be free from all possible doubts. He had seven daughters and no son. A pertinent question arises as to why did he gift away his entire land to one of his daughters, i.e. the petitioner, excluding the other six. The petitioner in her statement has not adverted to this aspect of the matter and has not stated as to why she was preferred over her other sisters. In the gift deed, contrary to the admitted facts, it is stated that the respondent had no daughter except Mst. Sardaran Bibi the petitioner. Had the respondent executed the said gift deed, contended his learned counsel, he would not have made such a mis-statement. The dubious nature of the gift deed in question is further highlighted when the petitioner states in her statement as DW3 that she had spent about Rs.200,0007- on the registration of the gift deed out of which 20,000/- rupees were paid to the scribe. This statement was sufficient to create suspicion about the whole transaction. Influenced by this statement the learend courts below had come to the conclusion that the gift deed in question was of a doubtful character. I am of the view that they were justified in assuming so, for with this amount it was not difficult to purchase a few witnesses • and manufacture the document in question. As the view taken by the learned courts below was possible in the circumstances of the case I am of the opinion that any interference from this court with the concurrent findings of the said courts in revisional jurisdiction, would not be justified. 13. This brings us to the question as to whether the possession of the land in dispute was delivered by the respondent to the petitioner under the gift deed. No doubt in the recital of the gift deed Exh.D.l it is mentioned that the possession had been delivered to the petitioner but it is a settled principle of law that the same is not enough to establish the factum of the delivery of possession. The petitioner's own witness DW.5 Shah Muhammad has admitted that the respondent used to receive the Theka of the suit land, that Noor (PW4) and Jalla were cultivating the said land,that he did not know if the respondent was receiving any thing from them and that Mst. Sardaran petitioner was not receiving any share from the said cultivators. Statement of Ghulam Murtaza PW.3 is to the effect that the respondent was in possession of the suit land and Noor Muhammad (PW.4) states that he was cultivating the land in dispute as a tenant under the respondent and previously the same was cultivated by one Muhammad Abbas. There is thus sufficient evidence on record to establish that the possession of the land in dispute, physical or constructive, was never delivered by the donor to the donee? under the gift in question and therefore, on this count also the gift was rendered invalid. Relying on Ibrahim vs. Mst. Wazir Begum (PLD 1987 Lah. 1087) learned counsel for the petitioner submitted that under the Muslim Law it is not always necessary for the donor to physically part with the possession of the gifted property. He further submitted that mere intention on the part of the donor was sufficient especially where the donor, his daughter the donee and her husband were all living in the same house. I am afraid the authority cited by the learned counsel is clearly distinguishable from the facts of this case. Firstly, there is no evidence on record to establish that the petitioner, her husband and the respondent were living in the same house and secondly in the cited case actual delivery of possession of the gifted land was held to be unnecessary because of the fact that the husband of the donee had all along been looking after and managing the said property. In the present case the petitioner's husband was neither looking after the land nor managing it. It is settled law that a gift of immovable property, of which the donor is in actual possession, is not complete unless he physically parts with the said possession and rn case the gifted property is in the possession of tenants the gift would be completed only when the donor directs the said tenants to attorn to the donee.' Delivery of possession is not necessary where the gift is from a father, to his minor child or by a guardian to his ward. In the present case, the land was in possession of tenants who were attorning to the respondent and therefore, either physical possession should have been delivered to the donee or the tenants should have been asked by the donor to attorn to the donee. As this has not been done the learned courts below were justified in holding that the gift in question was incomplete and thus invalid. Their concurrent findings on this pure question of fact are not assailable in revision. 14. In view of the above discussion there is no merit in this revision petition which is dismissed with costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 275 PLJ 1993 Lahore 275 Present: MIAN 3AEEDUR REHMAN FARRUKH, J MUHAMMAD SIDDIQUE and others -- Petitioners versus FAQ1R MUHAMMAD and another — Respondents Civil Revision No. 1865 of 1992, accepted on 15.12.1992 (approved for reporting on 24.1.1993). (i) Appraisal of evidence Redemption of mortgage — Application for — Land restituted and mutation attested — Subsequently suit for adverse possession decreed — Review of appellate decree dismissed ~ Challenge to — It is true that petitioners did not apply for permission to lead additional evidence before appellate court so as to get mutation of restitution of mortgage formally exhibited but this did not absolve either trial court or appellate court to notice it — Had said document been considered, fate of case would have been different — Copy of mutation was on record and it should have been treated as evidence and necessary conclusions drawn therefrom — Held: Lower courts failed to prertbrm their legal duty and their judgments suffer from non-reading of material evidence. [P. 279 ]A&B PLD 1992 SC 822 re/. <ii) Civil Procedure Code, 1908 (V of 1908) S.I 15 — Mortgage — Redemption of — Subsequent suit for adverse possession — Review disallowed by appelalte court — Challenge to ~ Order of redemption of mortgage was not challenged by respondent No. I in his suit and same had attained finality qua him — It would be travesty of justice if despite admitted position on facts, relief which is due to petitioners, is not granted to them — Respondent No. 1 was not at all entitled to decree prayed for by him — Courts below have tailed to read mutation of redemption in evidence and thus committed grave irregularity in exercise of jurisdiction vested in them —Held: This is eminently just and proper case for exercise of revisional jurisdiction to undo wrong— Petition accepted and suit of respondent No. 1 dismissed. [Pp.280&281 ]F,G,&H (in) Practice and procedure Mortgage — Redemption of — Subsequent suit for adverse possession — Justice has to be meted out to litigants irrespective of their failing to properly pursue their causes and technicalities have to be avoided — Procedure provided by CPC is to help and not thwart grant of their rights to people — A dishonest litigant winning a Us only on technical pleas, can neither live without pangs of conscience in this world nor rest in peace in life hereafter — Likewise, it is bounden duty of courts to discourage dishonest litigation — Held: Grave miscarriage of justice has been occasioned in this case which justifies interference in revisional jurisdiction. [P.279 & 280 ]C,D&E PLD 1992 SC 822 rel. Mr.Riaz Kiyani, Advoocate for Petitioners. Mr. Khan Muhammad Bajwa, Advoocate for Respondent No. 1. Date of hearing: 5.12.1992. JUDGMENT Briefly stated, the facts forming background of this case are; land measuring 9 kanals 19 marlas, Khasra No.2462, 2608 and 2656 was mortgaged by the fore­ fathers of the petitioners No. 2 and 3 with the predecessor of respondent No. 1. As a result of settlement, Khasra numbers were changed to 1224 and 1306 (hereinafter called "disputed land"). 2. The predecessor of petitioners No. 2 and 3 applied for redemption of the disputed land and the Collector/ Assistant Commissioner, after hearing the parties ordered restitution of the same in favour of the petitioners vide order dated 27.2.1971. The petitioners thereafter secured orders for issuance of warrant for possession on 16.7.1971 and vide rapt No. 289 were delivered possession and mutation No. 2018 was sanctioned accordingly. It was subsequently sold to Sardar, father of petitioner No. 1 3. Respondent No.l filed a suit for possession qua "disputed land" alongwith one Khasra No. 1216. He pleaded that he had become owner of khasra No. 1216 on the basis of adverse possession. About "disputed land" plea set up was that the petitioners No. 2 and 3 having failed to redeem it within sixty years, he had become its absolute owner. He asserted that he had been dispossessed forcibly from both the lands, and thus was forced to file the suit. The suit was contested but was decreed on 31.10.1975. Appeal filed was partly accepted qua kliasra No. 1216, but rejected qua disputed land. This is vide judgment dated 14.1.1976 by Sh.Lutaf-ur- Rehman, Addl. District Judge. The petitioners filed review. By that time Sh. Lutaf-ur-Rahman had been transferred and Mr. Muhammad Ramzan Malik had taken over as' Addl. District Judge. He dismissed the review petition on 19.7. 1981 . 4. The learned Addl. District Judge held that the petitioners had not annexed with review petition the copies of the judgment and decree sought to be reviewed, though they were legally obliged to file at least copy of the decree and as such the review petition merited dismissal. He further found that neither any error patent on the face of the record was pointed out nor any sufficient cause was shown to review the impugned judgment. 5. Initially .Writ Petition (W.P.No.979/82) was filed which was admitted to regular hearing. On 1.12.1992, prayer was made for conversion of the same into revision petition. After hearing the learned counsel for the parties I allowed this which was not seriously opposed by learnea counsel for respondent. No. 1 . 6. It is contended by the learned counsel for the petitioners that copy of mutation No.2018 evidencing the implementation of order of Collector dated 27.2.1971 restituting the disputed land was available on record, and though not formally exhibited, should have been noticed by the trial court as well as the lower appellate court and failure to do so and the consequential judgment against the petitioners amounted to grave irregularity in the exercise of jurisdiction on their part, This provided ample justification for seeking review before the lower appellate Court. It is also contended, relying on "Gavand Singh Vs. Ata Singh" (A.I.R. 1938 Lah 295) that copy of judgment or decree sought to be reviewed need not be filed alongwith review petition, in terms of Order 47 Rule 3 CPC. This provision when read in conjunction with Section 114 CPC can be rightly termed to be enabling one and not destructive of statutory right of review conferred upon a litigant. 7. Mr. Khan Muhammad Bajwa, learned counsel for respondent No.l has not seriously contested the proposition that copy of the judgment and/or decree impugned in the review petition need not be filed, along therewith. However, he has vehemently opposed the revision petition on other grounds: a) the judgment dated 14.1.1976 was pronounced by Sh. Lutaf-ur-Rahman, Addl. District Judge, and before the review could be filed, he had been transferred. The review petition filed later on and entertained by the successor Additional District Judge Muhammad Ramzan Malik was legally incompetent. In this context he has relied on Rashid Ahmad vs. Muhammad Ramzan (PLD 1961 B.J. 76). According to him therefore, nothing would turn on the mistake committed by him in dismissing the review petition on ground of lack of tiling of copies of the judgment and decree sought to be reviewed, as the same merited to be dismissed on the above technical ground; b) the order of A.C./Collector dated 16.7.1971 purportedly restituting the disputed land did not form part of record of trial court. No formal application for additional evidence was moved, either at the appellate stage. The petitioners could not, therefore, seek review of a judgment which is based on appraisement of material on record; and c) the only reason advanced for filing copy of the order dated 16,7.1971 alongwith the review application was that, earlier, this could not be done due to "accidental mistake" and that great injustice had been occasioned as A result of the impugned judgment. This could hardly be treated to constitute a valid ground for review. 8. The petitioners had placed copy of mutation No. 2018 on the record of the trial Court, though not formally exhibited and this position is not specifically dented vide para 2 of written statement (on merits). It is true that the petitioners did not apply for permission to lead additional evidence before lower appellate Court so as to get the said mutation formally exhibited but this did not absolve either the trial Court or the lower appellate Court tc notice it. Had the said document been considered, the fate of the case would have been different. It has been laid down by Supreme Court in Khurshid All's case (PLD 1992 S.C. 822 at 824,825) as under: "mere failure to exhibit a document formally would not make any difference and if (it) was found necessary for just decision of the case, the material relied upon by the party should be summoned and treated as evidence in the case without any formalities." In the instant case, the copy of mutation No.2018 being on the record of trial Court should have, therefore, been treated as evidence in the case and necessary conclusions drawn therefrom. The trial Court failed to perform its legal duty and its judgment suffers from non-reading of material evidence. The judgment of lower appellate Court suffers from same defect. 9. Justice has to be meted out to the litigants, irrespective of their failings to properly pursue their causes, and technicalities have to be avoided unless it is essential to comply with them on grounds of public policy. The procedure is provided by CPC to help and not thwart the grant to the people their rights. Their Lordships of Supreme Court in Khurshid All 's case, supra have laid down: "It is incorrect to think now under an Islamic dispensation that the courts are only to sit and watch as to who commits a mistake, and who does not commit a mistake, from amongst the contesting litigants, and one who commits mistake in procedural matters shoulJ be deprived of the right claimed; even if he is entitled to it..." The purpose of adjudication of a Us is to reach the truth and to see that right claimed, if found due, is acknowledged and awarded to the suitor. A dishonest litigant, winning a lis, only on technical pleas, can neither live without pangs of conscience in this world nor rest in peace in the life hereafter. In my view, it is his obligation, rather, to point out before the court the weakness of his case rather than hide it, irrespective of the fact that 'opponent had failed to plead the same. Likewise, it is the bounden duty of the courts to discourage dishonest litigation and in exercise of the powers conferred upon them by law to take suitable measures/steps in the cases so that the dishonest litigant is denied the relief. 10. Applying the principle of law enunciated by Supreme Court, with profound! respect, to the facts of the case, I find that grave miscarriage of justice has been! occasioned in this case, justifying interference by this Court in revisional jurisdiction. 11. It is not denied that order dated 27.2.1971 directing restitution of mortgaged land being Khasra No. 1244 and 1306 was passed in favour of the petitioners. 1 may refer to the averment of the respondent Faqir Muhammad in the written statement to the Writ Petition (W.P.No.974/82 - now civil revision):- Preliminary objection No. 1 "

Another prayer in the writ petition is to seek the declaration that order dated 27.2.1971 is legal and binding on the parties. It is submitted that a declaration cannot be made,.,as the order dated 16.1.1971 passed by the Collector, is subject to the decree passed by the learned Addl. District Judge and unless that decree is setaside in proper proceedings, the order of Collector will remain subject to the terms of decree." Validity of the order dated 27.2.1971 was not challenged by respondent No.l in his suit, and the same had thus attained finality qua him, Even otherwise, it is doubtful as to whether the said order was at ai! open to a challenge vide Section 17 of West Pakistan Redemption and Restitution ol Mortgaged Lands Act, 1964. Despite all this, it is being argued before me that the decree of the trial Court as modified by lower appellate court should not be touched meaning thereby that the respondent be permitted to retain what really does not belong to him, and all this only due to mishandling of the case of the petitioners before the trial Court and the technical objections prevailing with lower appellate Court resulting in rejection of the review of the petitioners. It would be travesty of justice if despite admitted position on facts, the relief which is due to the petitioners, is not granted to them. 12. In my view, this is eminently just and proper case for exercise of revisional jurisdiction of this court to. undo the wrong. Respondent No. 1 was not at all entitled to the decree prayed for by him. The land in dispute stood redeemed under orders of competent authority and he was fully, aware of it. He successfully prevented this reality from being highlighted till it was ultimately blurted out by him in the written statement filed in this court. The courts below failed to read mutation No. 2018 in evidence, and thus committed grave irregularity in the exercise of jurisdiction vested in them. These judgments/decrees cannot be sustained. It is the duty of this court under Section 115 CPC which enables it "to make such orders in the case as it thinks tit", to restore to the petitioners what legally belongs to them. 13. The revision petition is accordingly allowed, and the judgment and decree of the lower appellate court dated 14.1.1976, to the extent of upholding the decree of the trial court regarding Khasra No. 1226 and 1306 is set aside. The result would be that the suit of the respondent stands dismissed in toto. The petitioners are held entitled to costs throughout. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 281 PLJ 1993 Lahore 281 Present: GUL ZARIN KIANI, J WALI MUHAMMAD etc. — Petitioners versus NOOR MUHAMMAD etc. — Respondent Civil Revision No. 1127 of 1981, dismissed on 9.3.1993. Settlement and Rehabilitation Matters Evacuee land — Declaration of title to — Suit for — Dismissal of — Challenge to -- Matter for settlement of land had not proceeded beyond its mere proposal in favour of petitioners — Order of confirmation of proposal never came into existence — Proposal for allotment of evaucee land did not transfer ownership rights' in it in favour of proposed allottee which still vested in Central Government — Hence proposal for settlement of evacuee land did not invest petitioners with ownership rights in it — Held: Upon failing to prove clear title to land, petitioners were not entitled to consequential injunctive relief regarding their possession on land in dispute — Petition dismissed. [Pp. 282 & 283]A PLD 1963 Dacca 1172 and NLR 1980 UC 570 (Karachi) rel Mr. Zafar Pasha Chaudhry, Advocate for Petitioners. Malik Muhammad Sadiq, Advocate for Respondents. Date of hearing: 9.3.1993. JUDGMENT 15 kanals, 2 marlas of land' in killa Nos. 11, 20/1 of square No.41 at Chak No.397/GB in Tehsil Samundri was owned by non-Muslim evacuee. It was initially proposed for allotment to the respondents, in the year 1952 . On 10.5.1955, the proposal was recalled from their names on the ground of alleged transfer of units of their verified claim elsewhere. Thereupon, the land was proposed for settlement to the petitioners on 27.6.1955. Against the cancellation order passed on 10.5.1955, an appeal was preferred by the affected party to Additional Rehabilitation Commissioner (Lands) Multan Division, who allowed the appeal on 20-2-1958. Copy of the order was not on file. Petitioners assailed the order passed in appeal before the High Court in Writ Petition No.l7/R of 1960. It was allowed on 10th June, 1963, and the impugned order dated 22nd of February, 1958, was set aside on the short ground that it infringed rule of natural justice. Order passed by the High Court was implemented by the Rehabilitation Authority with the consequence that the cancellation order passed on 10.5.1955 was revived. I am disinclined to comment, whether this was the true import of the order passed by the High court. On the strength of proposal respecting the land, petitioners instituted a suit that they were its owners in possession and the respondents were not authorized to cause interference with their proprietary as well as possessory rights. Defendants contested the suit. It was pleaded by them that the Civil Court had no jurisdiction to try the suit; plaint was deficiently assessed for purposes of court-fee; the form of the suit was defective and on merits, it was averred that they were in possession of the land as its owners in accordance with the order passed by the Additional Rehabilitation Commissioner, on 22.2.1958. On 29.7.1974, the trial Court framed following issues for determination: - (1) Whether the Civil Court has no jurisdiction to try this suit ? OPD (2) Whether the plaint has not been properly stamped ? OPD (3) Whether the plaintiffs are in possession of the suit land ? OPP (4) If issue No.3 is proved in favour of the plaintiffs, whether the plaintiffs are in possession of the suit land as owners?OPP (5) Relief. In support of the above issues, parties gave oral evidence and relied upon documents to support their respective versions. Upon consideration of the evidence, the trial Court decreed the suit in favour of the plaintiffs-petitioners on 10-12-1975. Respondents preferred an appeal to learned District Judge, Faisalabad. He marked the appeal for its hearing to learned Additional District Judge who accepted it on 22/7/1981, with the result that the suit instituted by the petitioners was dismissed on score of want of jurisdiction in the Civil Court to hold its trial. Against this judgment, petitioners came up in revision to this Court. It was admitted to hearing on 3.4.1982. It was not disputed that the matter for settlement of land had not proceeded beyond its mere proposal in favour of the petitioners. An order for confirmation of the proposal never came in existence. Proposal in itself was not equivalent to its ; confirmation or actual settlement of land contained in it. An order for its confirmation was required to be made by the competent authority. However, the proposal for allotment of the evacuee land gave rise to a right for its confirmation in accordance with Settlement Laws. Unless the proposal was knocked out in accordance with due process of law, it was liable to confirmation in favour of the proposed allottee. In my opinion, proposal for allotment of evacuee land did not transfer ownership rights in it in favour of the proposed allottee. Ownership rights still vested in the Central Government as successor to the erstwhile evacuee owner whose rights it came to hold for its further transfer to the displaced persons from i India. Therefore, proposal for settlement of the evacuee land did not invest the petitioners with ownership rights in it. Hence, the claim for ownership to the land by the petitioners was untenable. Reference to the plaint would sufficiently indicate that the petitioners' case was in substance for declaration of title and for consequential relief which flew from the title sought to be established. Upon failing i to prove clear title to the land, the petitioners were not entitled to consequential •injunctive relief regarding their possession on the land-in-dispute. In this behalf, reference is made to Ayesha Begum and others Vs. Nibaran Chandra and others I PLD 1963 Dacca 172. The principle laid down in the precedent case was not! differed with in the case of Muhammad Yaqoob Vs.Muhammad Ishaque-NLR 19801 UC 570 ( Karachi ). It was significant to notice that the cause in the plaint itself was | based on proposal dated 27/6/1955 and there was no reference to its confirmation! anywhere in the plaint. For the reasons recorded above, I would uphold the impugned decision and dismiss the civil revision by leaving the parties to bear their own costs of the litigation throughout. Before closing, it was necessary to observe that in absence of a proper confirmation order , the 'proposal' in favour of the petitioners must be held to be a "pending case' for being dealt with in accordance with the provisions of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Since the matter was required to be dealt with by a "Notified Officer" in accordance with afore-noticed law, 1 shai! refrain from offering any comment on the entitlement of the petitioners to the land-in-dispute. Records be returned. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 283 PLJ 1993 Lahore 283 Present: GUL ZARIN KIANI, J Major HAMID ALI — Appellant versus Mian MUHAMMAD ANWAR - Respondent F.A.O. No. 199 of 1992, dismissed on 16.3.1993. Civil Procedure Code, 1908 (V of 1908) S.47 read with Order XXI Rr. 32 and 34 — Suit for specific performance of agreement -- Suit decreed — Execution of decree — Challenge to — Court may not have to fall on Rule 34 for supplementing its power to complete sale — Rule 32 with its sub-rules gave sufficient powers to court to have task completed either by decree-holder or by a person appointed by it at expense of judgment debtor — Draft sale-deed is in accordance with decree of trial court which was upheld upto Supreme Court — Executing court gave sufficient time and opportunity to appellant but upon flimsy pretexts, he was delaying dooms day — Sole object appears to be to coerce possible concession from respondent to surrender to beck and call of appellant — Held: There is no point pf substance for interference — Appeal dismissed. [Pp. 286,287 &j288]A&B AIR 1959 Andhra Pradesh 666, AIR 197! Assam and Nagaland 118, AIR (36) 1949 Nagpur 370 and AIR 1938 Calcutta 767 discussed. Qazi Zahid Hussain, Advocate for Appellant. Mr. Mehdi Khan Chohan, Advocate for Respondent. Date of hearing: 16.3.1993. JUDGMENT First appeal by the judgment-debtor was against an order passed on 24-10- 1992 by the Executing Court by which it accepted the draft of conveyance-deed and appointed its Reader to complete its execution and finalize its registration under the Registration Act, 1908. Appeal arises from the facts and circumstances enumerated below: - Agricultural land measuring 13 kanals, 10 marlas situate in village Shumali Chak No.45-Alif Sargodha belonged to Major Hamid Ali Khan (hereinafter referred to as appellant). On 12-12-1972, he entered into a contract for its sale with Mian Muhammad Anwar (hereinafter referred to as respondent) for a consideration of Rs.2,05,000/-. A part of the sale price was paid as earnest money to the owner of the land. Balance was payable at the time of linaiization of the sale. As the owner of the land did not abide by his contract for sale, promisee instituted a suit for specific performance of the contract in his favour. Suit was instituted in a local Civil Court, on 28/2/1973. Appellant contested the suit. On 22/3/1980, trial Court decreed specific performance of the contract for sale in favour of the respondent, upon payment of balance sale-price uptil 20/4/1980. Purchase price was deposited in time fixed in the decree of the trial Court. Appellant preferred an appeal from the decree of the trial Court. His appeal was registered as R.F. A. No.75 of 19^80 in this Court. On 3/7/1988, a Division Bench dismissed the appeal and upheld the judgment made by the trial Court. In CPSLA No. 119 of 1988, the Supreme Court refused leave to appeal from the judgment of the High Court on 24/6/1990. Thus, first round of litigation ended in favour of the respondent. On 29/7/1990, respondent applied to execute the decree for completion of the sale of the land in his favour. Appellant objected to the execution of the decree under Section 47 of Civil p.C. His objection was turned down on 29/1/1991, by the Executing Court. He preferred an appeal from the decision in the High Court. His appeal FAO No.54 of 1991, was withdrawn from the court on 3/6/1991 with certain 'observations, on 6.6.1991, appellant instituted a suit under Section 35 of the Specific Relief Act, 1877, for cancellation pf agreement to sett and the decre passed in the suit, for specific performance. On 29/3/1992, trial Court dismissed the suit on merits. Thereupon, an appeal-RFA No. 140 of 1992 was preferred before a Division Bench of this Court. It was admitted on 24/10/1992. However, there was no order for stay in the appeal, tt was agreed that there was no bar imposed by the Division Bench for hearing of the present appeal on its merits. Original execution file was before me. It showed that on 24/4/1991 appelhtnt was absent and order for taking ex-parte proceedings was made against him. It was observed in the order that the sale shall be completed and conveyance deed registered through the Reader to the Court. Therefore, Executing Court adjourned the case to 14/5/1991 for filing of the draft conveyance deed. The order passed on 30/5/1991 showed that the draft conveyance deed was submitted in court which then ordered for despatch of it through a registered letter to the appellant alongwith a notice for filing of objections by him. Matter was adjourned to 13/6/1991 for this purpose. From the order passed on the adjourned hearing, it was evident that the postal receipt and acknowledgment due were placed on file of the court to show that draft conveyance deed was actually despatched to the appellant and since the appellant had not appeared to object, the trial court directed for writing of the sale-deed upon stamp-paper and for filing it on 4-7-1991. Upon this date of hearing, appellant submitted an application for setting aside of an order for taking of ex-parte proceedings against him. Upon this event, the matter was adjourned for several dates of hearing. Meanwhile the appellant participated in the proceedings. In the course of hearing, a non-party namely Malik Manzoor Hayat also filed an objection petition. On 16-6-1992, his objection petition was dismissed with the consequence that proceedings again reverted to the original track for preparation of the sale-deed and its registration. Eventually, Executing Court passed the impugned order which led to the filing of the present appeal by the appellant. At the outset, it may be observed that as yet only a draft of the proposed sale-deed was prepared and was available on the file of the Executing Court. There was no order from the trial court for approval of the draft or alteration in it. However, it was part of record. On behalf of the appellant, it was urged that Rule 34(3) of Order XXI, Civil P.C. was imperative and without a prior notice to, and allowing of an opportunity to the appellant to file objections to the proposed draft conveyance-deed the court could not have ordered execution of the sale-deed and its registration by the Reader. In support, learned counsel referred to P. Venkanna Chetti and another. Vs. B. Apparao Naidu-A.l.R. 1959 Andhra Pradesh 666. On the above sub-rule, the court observed:- " It is seen from Order XXI, Rule 34(3) that where the judgmentdebtor objects to the draft and his objections are reduced to writing, the court has to make an order approving or altering the draft, as it thinks fit. This implies the consideration of the objections filed by the judgment-debtor. An order which does not take into account the objections raised on behalf of the judgment-debtor cannot be deemed to be a legal or valid one. The provisions requiring the court to make an order approving or altering the draft— which by necessary implication involves the consideration of the objections—being a mandatory one, non-compliance with the provisions vitiates the order". Learned counsel also referred to Sashimohan Debnath and another Vs. Monomohan Debnath and others A.I.R. 1971 Assam and Nagaland 118. Th judgment in the Report dealt with 0.21 R.34(l) and (3), Civil P.C. Its head note runs:- "Where the decree is for execution of a document, the draft of document should be in conformity with the terms of the decree. The executing Court can scrutinize the terms of the decree in order to find whether the draft has gone beyond the terms of the decree, but it has no jurisdiction to pass an order altering the draft except for bringing it in conformity with the terms of the decree. Thus, where the. decree for specific performance of an agreement to sell certain land does not contain any direction for possession of the land, the Court cannot order alteration in the draft sale-deed to include a direction for possession". As against it, learned counsel for the respondent heavily relied upon Kundanlal Nandkishore. Vs. Ramcharan Deokaran A.I.R. (36) 1949 Nagpur 370. and the text of Rules 32, 34 of Order XXI, Civil P.C. Learned counsel argued that the draft sale-deed was in conformity with the decree passed in there suit for specific performance and did not travel beyond it. Learned counsel also argued that in execution of decree for specific performance of a contract for sale of the land, the Court had inherent jurisdiction to give delivery of possession of the land to the decree-holder. Rule 32 of Order XXI expressly deals with decrees for specific performance, restitution of conjugal rights and injunction and provides various modes and steps for their execution. Under sub-rule (5), the Court executing the decree for specific performance and injunction can direct the act to be done, so far as practicable, by the decree-holder or some other person appointed by it at the expense of the judgment-debtor. There is a considerable body of case-law that under sub-rule (5), possession of the property could be delivered to the decreeholder in the suit for specific performance. Plain reading of the rule showed that it gave sufficient powers to the court to execute the specified decrees, in the mode and manner indicated in it. Rule 34 gave the mode and manner for execution of the decrees regarding execution of document or endorsement of negotiable instrument. In Raja Birendra Nath Ray Bahadur Vs. Purna Chand Natha and others-MR 1938 Calcutta 767, it was held that a decree for execution of document could be passed in any suit and nor merely in a suit for specific performance. Therefore, the scope of rule 34 was wider than Rule 32 of Order XXI. Execution of document under Rule 32 or 34 produced similar result as if it was executed by the party itself. Sub-rule (5) of Rule 32 empowered the Court to have the sale completed and registered in terms of the decree passed in the suit for specific performance! It was an independent and self-contained provision of law empowering the court to complete the sale in terms of the decree passed by it. In my view, therefore, the court may not have to fall on rule 34 for supplementing its power to complete the sale. As said by me, Rule 32 with its sub-rules gave sufficient powers to the court to have the task completed either by the decree-holder or by a person appointed by it at the expense of judgment-debtor. Blanks, if any, could be filled in by the court by making necessary direction. In Kundanlal Nandkishore Vs. Ramcharan Deokaran AIR (36)_ 1949 Nagpur 370, it was held that:- "Rule 32 of 0.21 confers the power on the court. Rule 34 merely sets out the procedure to be followed when the power sought to be exercised is execution of a document. The actual power is conferred under sub-r(5) of R.32. That runs as follows:- "Where a decree for the specific performance of a contract ... has not been obeyed, the court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court. This confers the power. The court has power there to direct the execution of a sale-deed either by the decree-holder or some other person appointed by the court. The manner in which that power is to be carried out is set out in R.34". Whether Rule 34 was independent and stood by itself to cater for the decrees of specified kinds or was supplemental to Rule 32, more particularly sub-rule (5), in absence of required assistance, I may not like to firmly comment on. However, I do hold an impression that the decree for specific performance squarely dealt within rule 32 was required to be executed within its own parameter:.. However, even if my above reading of Rule 32 was incorrect and the correct view was that the decree for specific performance was required to be executed in the mode and manner provided in Rule 34, the appellant may not have a bright hope for success. I have looked at the draft sale-deed. It is in accordance with the decree of the trial i court which was upheld upto the Supreme Court. Upoft flimsy pretexts, the! appellant was delaying the dooms day. Executing court gave him sufficient time and opportunity. But he avoided to avail of it and yet complained of defect of hearing and lack of opportunity to file objections to the proposed draft sale-deed. In order to cut short further delay, I asked Qazi Zahid Hassan Advocate as to what were the precise objections to the proposed draft sale-deed. Only objection, he could point out was that there could be no recital of possession in the ciiaft sale-deed and as to the rest, he said that he did not know and could give the nature of precise objections after proper consultation with the appellant. From the posture adopted at the hearing and the proposal for settlement upon payment of adequate compensation, I could guess that delay was the sole object to coerce a possible j concession from the respondent to surrender to the beck and call of the appellant., Upon review of record, no point of substance for interference was discovered. Therefore, the appeal is dismissed with costs. Records be returned to the Executing Court to complete the task soon. (MBC) (Approved for reportring) Appeal dismised.

PLJ 1993 Lahore 288 PLJ 1993 Lahore 288 Present: IRSHAD HASSAN KHAN, J AKHTAR HUSSAIN CHAUDHRY -- Petitioner versus AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN, THROUGH ITS CHAIRMAN, and another — Respondents Writ petition No.4466 of 1984, accepted on 18.4.1993. (i) Agricultural Development Bank (Staff) Servcice Regulations, 1961 Reg. 13— Officer of Agricultural Development Bank — Termination of services of — Challenge to — Contention that power of Bank to terminate services of its employees emanates from Regulation 13 of Regulations and Chairman having terminated services of petitioner under said Regulation, same is not open to scrutiny in these proceedings - Held: Superior courts have consistently taken view that if law provides two different modes for terminating services of employees, there is no bar to competent authority invoking either or any one in particular unless impugned order is shown to be malafide either in fact or in law. [Pp. 299]B,C,&D 1991 SCMR 2434 and 1992 SCMR 1112 rel. (ii) Agricultural Development Bank (Staff) Servcice Regulations, 1961 Reg. 13 read with Agricultural Development Bank Ordinance, 1961, Section 39 — Officer of Agricultural Development Bank — Termination of services of — Challenge to — Whether Regulation 13 of Regulations became inoperative as a result • of amendment in 1973 — Question of— No cavil with proposition that 1961 Regulations were not promulgated with approval of Federal Government as at time of its promulgation, no approval of Federal Government as necessary under Section 39 of Ordinance -- Board was competent to make Regulations of its own to provide for matters necessary or expedient for giving effect to provisions of Ordinance - Held: Regulation 13 of Regulations 1961 has been validly promulgated and still holds field. 7071. 1992 SCMR (iii) Maiafide Officer of Agricultural Development Bank — Termination of services of — Challenge to — Whether impugned order was bonafide — Question of — Question of malafide is to be decided with reference to facts and circumstances of each case - - Impugned order was passed on basis of findings of Ombudsman and inquiry report of Director Vigilance to which petitioner was not a party and he never associated with those proceedings at any stage — Order of termination is not shown to have been passed by competent authority by application of his independent mind but its sole basis is Ombudsman's order — Held: It cannot be said that termination of petitioner under orders of Chairman, who was appellate authority, could be treated as bonafide — Petition accepted and petitioner directed to be deemed in service. [Pp. 300,301,302 &303]E,F,G,.H.J 1970 SCMR 398, PLD1956 SC (Pak)298, PLD 1956 SC (Pak) 331,. 1987 SCMR 261, PLD 1974 SC 151 PLD 1969 SC 14, PLD 1968 SC 323, PLD 1970 SC 98, 1986 SCMR 1875 and 1986 SCMR 18 ref. Mr. All Sibtain Fazli, Advocate for Petitioner. Raja Muhammad Akram, Advocate for Respondents 1 & 2. Mr. A/tab Iqbal Chaudhry, Deputy Attorney General for Pakistan. Dates of hearing: 4 and 5.4.1993. JUDGMENT This petition under Article 9 of the Provisional Constitution Order, 1981, seeks a declaration that the Office Memorandum bearing No.P.(E&D-II)/15(2) 84/1739, dated 6.6.1984, terminating the services of Mr. Akhtar Hussain Chowdhry, Deputy Director, Officer on Special Duty, Regional Manager's Office, ADBP, Faisalabad, under Regulation 13(1) of the Agricultural Development Bank (Staff) Services Regulations 1971, on payment of three months substantive pay in lieu of notice, without assigning reason, is without lawful authority. 2. The facts leading to this writ petition are that petitioner, Akhtar Hussain Chowdhry, was appointed on 8.9.1974 as a Junior Officer-I with Agricultural Development Bank, of Pakistan, respondent No. 1 (hereinafter to be referred to as the Bank). The terms and conditions of his employment are recorded in Appointment Offer No.Admn.l/8(143)VI/2046, dated 8.5.1974. Clause-7 of the letter of appointment stipulates as under: - "You will be governed by the Rules, Regulations and orders of ADBP in force and as amended from time to time in all matters in respect of your service not specially mentioned in this memorandum. The rules, regulations and orders of the Bank shall prevail if there is any conflict between the conditions laid down in this office menmorandum and the Rules and Regulations". It is submitted that the petitioner became Manager/Deputy Director of the Bank at Jhang. In Decemeber, 1983, one Muhammad Dilmeer Khan and three others jointly applied for loan which was sanctioned by the Bank for Rs.84,000/- on 21.12.1983 It is alleged that Muhammad Dilmeer. Khan, one of the co-applicants for loan, lodged a complaint with the learned Wafaqi Mohtasib alleging demand of bribe by the petitioner for disbursement of loan. It was also alleged that the sanction was withdrawn on the assumption that Mr. Atta Muhammad, a co-applicant for loan, was a minor and the Bank was guilty of mal-administration in not accepting the date of birth on the National Identity Card, the certificate issued by the Medical Superintendent, District Headquarters Hospital, Jhang and the birth certificate issued by the Union Council. The learned Wafaqi Mohtasib disposed of the complaint on 16.5.1984, with the following findings:- (a) The ADBP should explain the uncivilised and unwarranted act of taking off the clothes of Mr. Muhammad Atta for ascertaining his having attained the age of majority. The action was against the accepted norms "of civilised behaviour and becomes more glaring because it was taken after submission of (i) National Identity Card which showed 1964 as his date of birth, (ii) Birth Certificate from the Union Council showing 11.2.1965 as the date of birth and (iii) Age Certificate from the Medical Superintendent, District Headquarters Hospital, Jhang, confirming his date of birth of 11.2.1965, after examining him. The Agency should also explain a^ to why compensation be not awarded to Mr. Muhammad Ata for the humiliation and the indignity suffered by him on account of perversive act of the Manager, ADBP, Jhang. (b) The complainants be disbursed the loan as already sanctioned by the ADBP on 21.12.1983. Action taken on my findings be reported by the target date on 15.6.1984". 3. Pursuant to the findings of the learned Wafaqi Mohtasib, the Chairman of the Bank, respondent No.2, directed the Director (Vigilance) of the Bank to submit report vide Office Note dated 24.5.1984. In consequence, the Director (Vigilance) visited Jhang on 27.5.1984 and after hearing the applicants for loan, recording their statements and perusing the record, held that the loan case had been carelessly handled. The following observations by the Director (Vigilance) in his report dated 31.5.1984 may be reproduced with advantage:- " The applicants argued that Mr. Muhammad Atta did look like a minor due to inherent birth defects but he is major by all means and they could satisfy the Manager about it. The Manager however did not agree and he got his shirt put off and inspected his armpits which had no hair. The Manager pronounced his judgment that the boy is minor and he closed the loan case. It has however been established beyond doubt that the Manager or any other Bank functionary never got removed other clothes of the applicant. His shirt was only removed and armpits were examined. The complainant did not stress or produce any evidence in respect of demand of illegal gratification of Rs.2000/- from him. Although he did not give in writing but he confessed before me that the Manager himself did not demand any money from him. Being annoyed with the behaviour of the Manager, as inspite of all proofs of majority of Mr. Muhammad Atta he did not release the sanctioned loan he inferred that he needs money for doing our work. Thus it is clear that no inhumane treatment has been meted out to the applicants nor money has been demanded from them but neverthe-less they have been put to un-necessary trouble and botheration by the irresponsible behaviour of the Manager. It is, therefore, proposed that Mr. Akhtar Hussain Chowdhry may be proceeded against under ADBP Officers Service (E&D) Regulations, 1975 for inefficiency as under:- i) He closed the sanctioned case on 28.12.1983 in a hurry and without satisfying himself about the majority of the disputed applicant Mr. Muhammad Atta with reference to other documentary evidence available with Union Council/DHO etc. ii) Even after closure of the case he kept the applicants running from one office to another for producing documentary evidence of majority of Mr. Muhammad Atta, without authority. iii) He also referred the same issue to the Regional Manager and L.A. Faisalabad although he had formally closed the loan case. iv) He sanctioned fresh loan case No.075675 to the same applicants excluding the so called minor on 2.5.1984 and paid a loan of Rs.99,475/- the same day on the charge already created on the land of the applicants on 24.12.1983 including the so called minor applicant. v) On account of his mis-handling of the loan case, the applicants have been put to inconvenience, un-necessary expenditure and harassment and Bank's image has been tarnished. I may- also add that it will be in fitness of things that pending formal enquiry into the charges Mr. Akhtar Hussain Chowdhry may be withdrawn from field duty as Manager and posted as OSD in Regional Office, Faisalabad". 4. The report of the Director (Vigilance) was placed by the Executive Director (Operatin Division) before respondent No.2 vide note dated 3.5.1984 which reads thus:- "Reference Chairman's note dated 24.5.1984, Director (Vigilance) visited Jhang on 27.5.1984. His report is placed below. Its perusal shows that Manger did show high handedness towards the borrowers and exceeded the limit of modesty. 2. In the meanwhile fresh loan application from 3 applicants after excluding the name of Mr. Muhammad Atta was entertained on 30.4.1984 and loan for tractor disbursed on 2.5.1984. The party as such is satisfied. 3. In view of the earlier misconduct, he has been removed from the branch and posted at Faisalabad in Regional Office. RM (Faisalabad) passed these orders on 30.5.1984 under my directions. 4. Disciplinary action is being initiated for the misconduct and other irregularities pointed out by Director (Vigilance) in the concluding para of his report. 5. We may apprise Wafaqi Mohtasib of the above position." 5. Respondent No.2 made the following remarks on the said note on 2.6.1984:- "1. Seen. 2. I very strongly feel that it is necessary now to make some cases as "examples' so that the staff may get the message that the management can act forcefully in the event of cases of corruption and/or high handedness and rudeness with clients. 3. I would therefore very much like to terminate the services of this officer under Section 13(1). 4. Before we do so, however, I think it is necessary to get a clearance from Ombudsman's Office so that there is no misunderstanding with them whatsoever. 5. Therefore Director (E&D) may please personally call on the relevant official in Ombudsman's office, explain the position and get their clearance so that we may go ahead with termination orders." 6. Respondent No.2 informed the Wafaqi Mohtasib vide letter No.C&I/FSD- 5(421)/84,, dated 12.6.1984 that the services of the petitioner have been terminated. However, the Wafaqi Mohtasib's Secretariat, vide D.O.No.,REG.11/3522/84, dated 18.7.1984, recommended the respondent to reconsider the decision in the light of the appropriateness of the punishment with the following observations: - "It is obvious that the Bank justified the action of the Manager ADBP Jhang. Moreover, the tenor of thought as given in your letter No.C&I/FSD-5(42)/84, dated the 12th June, 1984 does not seem to occasion the extreme punishment of termination of service of Mr. Akhtar Hussain Chaudhry. You may like to kindly reconsider the decision in light of the appropriateness of punishment." Respondent No.l gave the following remarks on the said D.O. letter which read thus:- "Seen. No action required " Sd/- Chairman 25.7.1984 7. Mr. Ali Sibtain Fazli, learned counsel for the petitioner, argued that Regulation 13(1) of the Staff Service Regulations, 1961, has wrongly been applied to the case of the petitioner, in that,it has been removed from the statute book by an amendment to the Agricultural Development Bank Ordinance (IV of 1961) on February 6, 1963, by virtue of the Agricultural Development Bank (Amendment) Act (XII of 1973). In this amended Act Section 39 of the Ordinance No.IV of 1961 was amended and a proviso was added to the effect that no regulation made with respect to the matters mentioned in clauses (e) and (r) pertaining to amongst other things disciplinary and service matters of the Bank shall take effect until it has been approved by the Federal Government. It was argued that on the basis of the aforesaid amended provision, the Bank made Regulations called the Agricultural Development Bank of Pakistan Officers Service (Efficiency and Discipline) Regulations, 1975 and got the same approved by the Federal Government and, therefore, these regulations alone regulate the service of all the officers of the Bank. As regards Service Regulations of 1961 (supra), it was argued that the Federal Government never accorded any approval to the said regulations and, therefore, the same were non-existent in the eye of law and the impugned order of termination passed thereunder is of no legal validity. 8. In order to appreciate the aforesaid submissions it would be advantageous to reproduce the provisions of Regulation No. 13 of the Agricultural Development Bank (Staff) Service Regulations, 1961 and the provisions of Sections 30 and 39 of the Agricultural Development Bank Ordinance, 1961, Regulation 13 reads as under:- "13. Termination of Service. — (1) The Bank may dispense with the services of an employee other than an employee on probation or a temporary employee, by giving 3 months previous notice in writing or 3 months of 30 days substantive pay in lieu thereof, to an employee in Class I or Class II and one month of 30 days, previous notice or 30 days substantive pay in lieu thereof to an employee in Class III and Class IV. In the case of a temporary employee of any class, such notice or pay in lieu shall be for a period of one month of 30 days. The power to terminate the service of an employee shall be exercised by the competent authority. Such termination of service of any employee is in the absolute discretion of the Bank and it shall not be necessary to assign any reason for the termination and the employee shall not be entitled to any form of compensation for termination of service. (2) The Bank reserves the right of dismissing an employee without any notice if he is found guilty of misconduct, breach of trust or neglect of duty. (3) Nothing in sub-regulation (1) shall effect the right of the Bank to make an employee retire or to dismiss an employee without giving notice or pay in lieu thereof in accordance with the provisions of subregulation (4) and regulation 95 or its right to determine the service of an employee without notice or pay in lieu thereof on his being certified by the authorised medical attendant to be permanently incapacitated for further continuous service in the bank. But an employee whose service is determined on his being so certified may ask for medical examination by a Board of Doctors constituted by the Chairman and by the General Manager, East Pakistan in case of employees in East Pakistan. Provided that an employee who is made to retire or is dismissed or whose service is terminated under this regulation shall have the right of making an application for review, to the competent authority. (4) An employee in the service of the Bank shall retire from service:- (a) on such date, after he has completed twenty-five years of service as the competent authority may in the interest ot the Bank, direct; (b) if he has completed before, or completes within a period of six months from, (he date of publication of sub-regulation (4) in the Gazette of Pakistan, the fr'ty fifth year of his age, on such date after such completion, being a date within the said period, as the Competent Authority may direct or in the absence of such direction, on the expiry of the said period or on the completion of the sixtieth year of his age, whichever be earlier; or (c) in any other case, on the completion of the fifty-fifth year of his age. (5) Notwithstanding anything contained in clause (b) or clause (c) of sub-regulation (4) the competent authority may extend the service of an employee beyond, or re-employ an employee after, the date of his retirement for such period and on such terms and conditions as it may deem fit. Provided that the service of an employee which has been extended or of an employee who has been reemployed, shall be liable to termination at not less than three months' notice on either side or upon payment of three months salary in lieu thereof; and such termination shall not be deemed to be removal or dismissal. (6) (7) 9. The provisions of Sections 30 and 39 of the Ordinance, as amended in 1973, are llows:- "30. Appointment of officers and advisors:- The Bank may appoint or employ such persons including advisors as it considers necessary for the efficient performance of its oper 'tion on such terms and conditions as may be prescribed by regulations". "39. Regulations. — (1) The Board may make regulations not inconsistent with this Ordinance or the rules to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Ordinance and the efficient conduct of the affairs of the Bank. (2) Without prejudice to the generality of the provisions of sub section (1), the regulations may provide for:- (a) ................................... : .......................... (b) .............................................................. ........................................................ ........................................................ the recruitment of the employees of the Bank, the terms and conditions their service, the constitution and management of Group Provident Funds for the employees of the Bank and all other matters connected with any of these things: the duties and conduct of employees and agents; (g) (h) Provided that no regulation made with respect to the matters mentioned in clauses (e) and (f) shall take effect until it has been approved by the Federal Government." 10. The effect of insertion of the proviso to sub-section (2) of Section 39 of Ordinance was considered in the case of Anwar Hussain v. The Agricultural Development Bank of Pakistan and others (1992 SCMR 1112). It was held:- "Regulations relating to terms and conditions of service of the employees including the termination, were subjected to the approval of the Federal Government. Therefore, if the proviso was attracted the contracting parties were not free in the matter of contract of service and the rule laid down excluding the principle of master and servant, because of the statutory rule placing fetters upon the freedom of parties , would coming into operation." It was further held": "After coming into force the Amendment Act (XII of 1973) on 6th February, 1973, with the approval of the Federal Government Regulations relating to the Efficiency and Discipline of employees were made which are called the A.B.D.P. Officers (Efficiency and Discipline) Regulations, 1975 which are more or less on the same pattern as the Efficiency and Discipline Rules governing the civil servants. These Regulations repealed Regulation 95 in Chapter VI of the Service Regulations of 1961" (the latter Regulation No.95 related to efficiency and discipline of employees). (The words in the prenthesis are mine). It was further observed :- "the proviso to subsection (2) of Section 39 of the Ordinance as appended by means of amendment of the law in 1973 plainly stipulates that the Regulation made under clauses (e) and (f) of the said subsection can come into force only upon and from the date of the approval accorded by the Federal Government. Therefore, such Regulations will be inoperative or ineffective until the condition laid down. namely, the approval of the Federal Government, is fulfilled." 11. A question was raised whether the amendment made in 1973 by its own force renders the Service Regulation of 1961 which were already in effect and which fell within the purview of clause (e), inoperative from the date when the amendment came into force on 6th February, 1973. It was held:- "It will be difficult to construe the provisions of the proviso to destroy the Regulations which had already come into force prior to the amendment, as obviously that would amount to giving retrospective operation to the provisions of the Amendment Act. It therefore, follows that the remaining Regulations of 1961, other than the substituted Regulation 95, having come into force prior to the 1973 amendment, when no prior approval of the Federal Government was necessary, shall continue to remain in force and operative notwithstanding the amendment of subsection (2) of section 39". 12. There is no cavil with the proposition that 1961 Regulations were not promulgated with the approval of the Federal Government, in that, at the time of its promulgation no approval of the Federal Government was necessary under Section 39 of the Ordinance. The Board was competent to make Regulations of its own to provide for matters which it thinks necessary or expedient for giving effect to the provisions of the Ordinance and the efficient conduct of the affairs of the Bank. As held in Anwar Hussain (supra) "For all intents and purposes the service Regulations of 1961 are unalterable without the prior sanction of the Federal j Government " The result is that Regulation 13 of Service Regulations, 1961, ' has been validly promulgated and still holds the field. 13. In Anwar Hussain's case (supra), it was further observed:- " Regulation 13 (of 1961 Service Regulations) (the words in the prenthesis are mine) vests in the Bank a power to dispense with the service of any employee with prior notice of the prescribed period or pay in lieu thereof and it has been categorically declared in this Regulation as under:- "Such terminat'ng of service of an employee is in the absolute discretion of the Bank and it shall not be necessary to assign any reason for the termination and the employee shall not be entitled to any form of compensation for termination of service". It would, therefore, be seen that Regulation 13 of Service Regulations of 1961 deals with termination of service, while Regulation 95 of 1975 Regulations with Efficiency and Discipline. These are two distinct powers available to the competent authority and it is for it to decide whether in a given case action should be taken against Regulation 13 or Regulation 95 of 1975 Regulations. The same view was taken in the case of Agricultural Development Bank of Pakistan and two others v. Muhammad Sharif (1988 SCMR 597). The relevant passage at pages 600 and 601 of the precedent case reads thus:- "It is clear from these two distinct provisions of Staff Service Regulations applicable to the respondent that two distinct powers were available to the competent authority and there was no bar expressed or implied to the competent authority invoking either or any one in particular. In the case of Abdul Karim v. West Pakistan Province PLD 1956 SC 298 which none of the Courts has noticed, it was held by this Court that an employee whose services could be terminated on one month's notice could on the basis of a notice be removed though charge-sheet had been served with regard to his misconduct and an enquiry was in the offing. It was held that it is open to the dismissing authority not to have recourse to the power of dismissal which is a drastic step and which affects subsequent employability of this public servant, but to terminate service on one month's notice in accordance with the condition of his employment. Again in the case of Water and Power Development Authority v. Muhammad All 1987 SCMR 261, it was held that "if the law provides the appellate authority with two different modes for terminating the services of its employees the mere fact that it has, to begin with, elected to act under one mode would not in the absence of a bar in the law preclude it from adopting the second mode at a later stage". 14. When faced with this, learned counsel for the petitioner vehemently argued that the impugned order of termination was mala fide and was, therefore, liable to be quashed. He also placed reliance on the observations in the case of Anwar Hussain (supra):- "unless something by way of a guarantee of tenure of service is provided by the statute or the Regulations framed thereunder or mala fides is alleged, no employee can maintain a suit for re-instatement in service without showing the violation of such statute or Regulations". 15. Raja Muhammad Akram, learned counsel for the respondents, denied the allegations of mala fides. He took the plea that the petitioner himself admitted in his letter dated 17-4-1984 that "the shirt of Mr. Atta Muhammad was put off and there were no signs of majority in his armpits and "the armpits and place between legs of Mr. Atta Muhammad were found hairless giving no signs of majority". The plea taken in the parawise comments by the respondents was that the charge of demanding bribe from the applicants for loan was not proved against the petitioner, but there was no justification for his uncivilized and unwarranted act in taking off the clothes of Mr.. Atta Muhammad for ascertaining his having attained the age of majority. 16. Raja Muhammad Akram strongly advocated that the power of the Bank to terminate the services of its employees without assigning reason and prior notice of the prescribed period or pay in lieu thereof emanates from Regulation 13 of 1961 Regulations. The Chairman exercised this power and terminated the services of the petitioner under the aforesaid Regulation, which is not open to scrutiny in these proceedings as held in the case of Muhammad Sharif (supra). Mr. Aftab Iqbal Chaudhry, the learned Deputy Attorney General, also supported Raja Muhammad Akram. I have heard the learned counsel for the parties at some length, perused the available material and the departmental files with their assistance. As to alleged mala fides, the precise submission was that the Bank under the cloak of Regulation 13(1) punished the petitioner for alleged misconduct which could be done only if he had been found guilty in the proceedings after holding a due enquiry in accordance with the provisions ' of ADBP Officers Service (Efficiency and Discipline) Regulations, 1975. The Superior Courts of this country have consistently taken the view that ifi the law provides the competent authority with two different modes for terminating! the services of the employees, there is no bar to the competent authority invoking either or any one in particular, unless the impugned order is shown to be mala fide either in fact or in law and where absolute discretionary power of removal from service had been conferred on a statutory corporation or body, without assigning any reason, exercise of such power to be immune from judicial scrutiny, must be accompanied by absence of taint of mala fide, or guarantee of tenure of service available under the statute or the regulations framed thereunder having the force of; statute.The same view was reiterated by the Honourable Supreme Court in the easel of Karachi Development Authority and another v. Wall Mukhammad Khan and others (1991) SCMR 2434), after an elaborate discussion of the previous case law on the subject as contained in Dr. Abdul Hafeez v. Chairman Municipal Corporation, Lahore and others (PLD 1967 Lah. 1251); Muhammad Salimullah v. Trustees of the Port of Karachi (PLD 1975 K.ar.758), R.T.H Janjua v. National Shipping Corporation (PLD 1974 SC 146); Tlie Lahore Central Co-operative Bank Ltd. v. Pir Saifullah Shah (PLD 1959 SC (Pak) 210); Salahuddin v. Frontier Sugar Mills and Distillary (PLD 1975 SC 244) Chairman East Pakistan Development Corporation v. Rustam Alt (PLD 1966 SC 848) Shahid Khali I v Pakistan International Airlines Corporation Karachi (1971 SCMR 568); Muhammad Aslam v. National Shipping Corporation (PLD 1979 Kar. 246); Evacuee Trust Property Board v. Muhammad Nawaz (1983 SCMR 1275); Principal, Cadet College, Kohat v. Muhammad Shoah Quresln (PLD 1984 SC 170), Anwar itussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194); WAPDA v. Muhammad Arshad Qureshi (1986 SCMR 18) and Agricultural Development Bank of Pakistan v Muhammad Sharif (1988 SCMR 597). Also see Anwar Hussain v, Agricultural Development Bank of Pakistan (1992 SCMR 1112) discussed above. 21. Let me now examine whether the impugned order is mala fide and it Itantamounts to taking away the guaranteed tenure of service of the petitioner 'without any reason. There is no cavil with the proposition that where allegations iabout an employee's misconduct existed in the office noting, but the orders terminating his service do not contain any charge or stigma against him, it does not fyso facto lead to the conclusion that his services were terminated by way of penalty or it was tainted with mala fides. The question of mala fide is to be decided iwith reference to facts and circumstances of each case and in the light of the test ; laid down by the Superior Courts in, among others, the cases reported as The '.Secretary, East Pakistan Industrial Development Corporation, Dacca v. M.D. • Sirajul Haque (1970 SCMR 398); Ahdul Karim v. West Pakistan Province (PLD 1956 SC (Pak) 298); Noontl Hassan and others v. The Federation of Pakistan j(PLD 1956 SC (Pak) 331) and Water and Power Development Authority v. \Muhammad All (1987 SCMR 261). 22. Here it is established on record that on receipt of the orders from the learned Ombudsman, the respondent No.2 made a note that suitable action be taken against the petitioner and in this connection he ordered an enquiry by the Director Vigilance-E, Jhang, who after holding an enquiry, although came to the conclusion that the place between the legs of Atta Muhammad had not been checked by the petitioner, yet for reasons recorded in his report, recommended that the petitioner be proceeded against under ADP Officers Service (Efficiency and Discipline) Regulations, 1975. It was stated by the Executive Director that disciplinary action was being initiated for misconduct and other irregularities pointed out by the Director Vigilance. On his report the Chairman has remarked" I very strongly feel that it is necessary now to make some cases as examples so that the staff may take the message that the management can act forcefully in the cases of corruption and/or high handedness and rudeness with clients. I would, therefore, like to terminate the services of this officer under section 13(1)." The record also shows that the Bank contemplated to terminate the service of the petitioner but the note of the Chairman stated that his services should be terminated under section 13(1) of the ADBP Staff Service Regulations of 1961. The impugned order of termination is based on the view of the Chairman, without assigning any reason, although reasons were there on the file. 23. The Bank record produced before the Court clearly establishes that the impugned order was passed on the basis of the findings recorded by the learned Ombudsman and the enquiry report prepared by the Director Vigilance to which the petitioner was not a party and he was never associated with those proceedings at any stage. The Ombudsman's Secretariat, at whose instance the impugned action was taken, recommended to the Chairman of the Bank to reconsider the decision of termination of the petitioner as the same was considered to be harsh, having regard to the circumstances of the case. However, respondent No.2 never bothered to reconsider it and merely consigned the letter to record with the remarks "Seen. No action required " This was wholly unwarranted, in that, if respondent No.2 did not agree with the direction issued by the learned Ombudsman, the appropriate course was to make a further reference to him explaining reasons for not acting on his recommendation or to file a representation before the President of Pakistan under Article 32 of President's Order No. 1 of 1983, Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983. This was never done and, therefore, it cannot be said that respondent No.2 passed the impugned order bonafide. 17. It was held in Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151), Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), Abdul Baqi Baluch v. Government of Pakistan (PLD 1968 SC 323); Lt. Col. Farzand All v. Province of West Pakistan (PLD 1970 SC 98), that in order to establish a case of mala fides some specific allegation is necessary and it must be supported by some prima facie proof to justify the Court, to call upon the other side to produce evidence in its possession, in that, there is, to start with, a presumption of regularity with regard to all official acts, and unless that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. Here the allegations of mala fides have been pleaded with particularity in the writ petition. It is supported by an affidavit but no counter affidavit has been filed by the respondents to rebut the allegations made therein. The respondents have not even cared to file the written statement. However, their parawise report states "It is wholly incorrect that the action has been taken against x Mr. Akhtar Hussain for the reasons produced in the petition. Further allegation of mala fide is vehemently rebutted". The allegations levelled in the writ petition coupled with the documents placed on record made out & prima facie .case of mala fides and on that basis, the respondents were called upon to justify the impugned action, but they failed. 18. The case of Osman Ghani v. Federal Service Tribunal (1986 SCMR 1875) is fully attracted to the facts of the present case. The precedent case was of an Executive Engineer (Stores) of the Water and Power Development Authority (WAPDA). The employee was served with a charge sheet alleging that the fire took place in the premises of the Authority was a result of his acts of omissions and commission. The charge-sheet was issued under the West Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1971. The employee was called upon to submit his explanation, which he did. An enquiry was held but no action was taken in consequence thereof. Subsequently, he was intimated that the Authority has decided to remove him from service on payment of 30 days pay in lieu of 30 days notice in exercise of the powers conferred on it under section 17 (1-A) of the West Pakistan WAPDA Act, 1958. The employee approached the Service Tribunal for redress on the ground that the WAPDA had started action under the Efficiency and Discipline Rules, but finding that the allegations against the petitioner therein could not be proved fell back on the provisions of section 17(1-A) for removing him. The Tribunal repelled the contention. On appeal, the Supreme Court, after noting its earlier decision in WAPDA v. Muhammad Arshad Qureshi (1986 SCMR 18) accepted the appeal on grounds of mala fide in law with the following observations:- Thus, if while passing the order of removal the Authority is found to have exercised its power not bona fide, but for some extraneous consideration, such an order would stand vitiated. We are of the opinion that the impugned' order, dated 9-10-1976 passed by the Authority was mala fide in law and must be set aside. The judgment of the Service Tribunal, which affirmed the same, cannot also, therefore, be sustained". 26. It is true that in case of termination simpliciter of an employee in accordance with the terms and conditions of his service, the legality of the termination would not turn on whether the employer heard the employee before dismissing him. It is well established that where an office is held during pleasure and not governed by any statutory rules regulating his employment of service, the person having the power of removal need not have anything against the employee. So he need not give any reasons. 27. In the case in hand, the impugned order of termination is not shown to have 'been passed by the competent authority by application of his independent mind, but its sole basis was the learned Ombudsman's order. The petitioner being an officer Grade-II, the Executive Director (Admn), was the competent authority at the relevant time to initiate disciplinary action or to impose major or minor penalties vide Circular No.21/81, dated 29-3-1981, issued by the Chairman. It, therefore cannot be said that the termination of the petitioner under the orders of the Chairman, who was the appellate authority, could be treated as bona fide. Thus visualized, before any penalty was inflicted upon him by removal from service in the garb of termination, he was entitled to know what was alleged against him and to submit his explanation. Failure to do so has resulted in grave miscarriage of justice. Clause (a) of Regulation 5 of ADBP Officers Service (Efficiency and Discipline) Regulations, 1975, also makes it incumbent upon the enquiry officer or (enquiry committee to inform the action proposed to be taken against an employee land the grounds of the action and also to give him reasonable opportunity to show 'cause against that action. Admittedly this procedure was not followed and, therefore, the impugned action cannot be treated as bonafide. The ratio laid down in the case of Osman Ghani (supra) is fully attracted to the facts of this case. 28. There is also great force in the submission of the learned counsel for the petitioner that Regulation 13(4) of 1961 Regulations guarantees tenure of service up:o the age of superannuation. Regulation 14 of the Agricultural Development Bank Employees (Pension and Gratuity) Regulations, 1981 also guarantees superannuation pension to an employee on his attaining the age of superannuation and, therefore, the impugned order has the effect of deprivation of right to continue upto the age of superannuation, and claim of superannuation pensionary benefits without notice or fair right of hearing. See Pakistan and others v. Public At Large and others (PLD 1987 SC 304), wherein it was held:- "It is common principle which governs the administration of justice in Islam that in case of liability with penal or quasi-penal consequences and/or deprivation of basic rights a notice as well as an opportunity of hearing, are of absolute necessity. This by itself has to be recognized as a basic right The denial of these safeguards for doing justice would amount to Zulin and Ziaditi against oneself as also the victim." For the reasons stated above, the impugned order is hereby declared as without lawful authority and of no legal effect. The result is that the petitioner shall be deemed to be in service as if his services were never terminated. The writ petition is accepted, but there shall be no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 303 PLJ 1993 Lahore 303 [Bahawalpur Bench] Present: MUNIR A. SHEIKH, J MUHAMMAD AMIN — Appellant versus GHULAM MUHAMMAD - Respondent R.F.A. No.22/BWP of 1992, accepted on 8-3-1993 Civil Procedure Code, 1908 (V of 1908) O.XXXXVII ; R.3 — Suit for recovery of money — Leave to appear and defend — Refusal of — Challenge to — From presence of signatures on pronote by appellant as admitted by him, it has been presumed as if execution of pronote had been admitted — It is firmly settled law that expression "execution" of a document does not mean mere presence of signatures on it of executant — A plea was raised that there were business dealings between parties and case was of settlement of accounts — Held: Order dismissing application of appellant for grant of leave to appear and defend suit and passing decree, is not sustainable — Appeal accepted. [Pp.304 & 305] A&B PLJ 1990 Karachi 306 Distinguished. Sardar Muhammad Iqbal Khakwani, Advocate for Appellant. Mr. M. Shamshir Iqbal Chughtai, Advocate for Respondent. Date of hearing: 8-3-1993 JUDGMENT This appeal is directed against judgment and decree dated 23-5-1991 passed by the learned Addl. District Judge, Bahawalpur through which after dismissing the application of the appellant for grant-of leave to appear and defend the suit filed by the respondent for the recovery of an amount of Rs. 1,82,280.00 on the basis of pronote the suit has been decreed. 24. In the application filed by the appellant for grant of leave to appear and defend the suit it was specifically stated that he had business ealings with the respondent/plaintiff for supply of poultry ! eed and it was a continuing business and was a matter of settlement of accounts. The signatures of the appellant were obtained on the promissory note as security for the payment of the dues which may become due from the appellant regarding purchase of the poultry feed from the respondent and as a matter of fact the amount mentioned in the pronote was not in fact recoverable and the same was never received by the appellant as such it was without consideration. 25. The leamexl Addl. District Judge held that since presence of his signatures by the appellant on the pronote had been admitted therefore, it was admission of execution of the pronote as such was not a fit case for grant of leave to appear and defend the suit and proceeded to reject the application and pass decree in favour of the respondent. 26. From the mere presence of signatures on the pronote by the appellant as admitted by him it has been assumed as if the execution of the pronote had been admitted. It is firmly settled law that the expression 'execution' of a document does not mean mere presence of signatures on it of the executant where a plea had been raised that the same were obtained for any other purpose and the amount j mentioned therein was never paid to him. The expression execution has always been understood to mean that the executant had put his signatures after fully understanding the contents of the document as correct. A plea was raised that there were business dealings between the parties and the case was of settlement of accounts regarding sale and purchase of poultry feed and no amount was paid to the appellant under pronote therefore, it was erroneously assumed as if admission of appellant about his signatures on the pronote in these circumstances amounted to I the admission of execution of the document which includes passing of consideration. It is also well settled law that if the Court intended to proceed to pass order or decree on the basis of admission made by a party, the admission as a whole has to be taken into consideration and no part of the same could be separated, and judgment passed on the basis of that. 2. In the reply filed by the respondent to the said application no mention was made regarding averments of the appellant that there were business dealings between the parties for sale and purchase of poultry feed. The appellant appended with the application copies of khata regarding sale of poultry feed by the respondent to the appellant but it appears that the same has not been given due consideration. 3. Learned counsel for the respondent when questioned as to how he could support the impugned order, judgment and decree placed reliance on judgment reported as Mst. Sajida Abbas Zaidi Versus Syed Arshad All Jafri (PLJ 1990 Karachi 306) to contend that where the signatures on the pronote had been admitted to be that of the defendant in such suit under Order 37 C.P.C decree out-right could be granted and prayer for grant of leave to appear and defend the suit could be declined as the onus shifted to the defendant to establish that consideration did not pass. I am afraid, the facts of this reported case are different from the present one in which a specific plea had been raised that no consideration passed and there were business dealings between the parties and the matter required settlement of accounts which plea was supported by the copies of khatas maintained. Learned counsel for respondent however admitted that the poultry feed business is being run by the son of the respondent and the appellant used to purchase poultry feed from his son. This plea was not raised in the written reply of the application. From this it prima facie appears that the amount in dispute might be relatable to the said sale and purchase of poultry feed which required further inquiry and recording of evidence which could only be done if the appellant had been granted leave to appear and defend the suit because in that case alone he could discharge the onus which according to learned counsel for the respondent had shifted to him. 7. The order passed by learned Addl.District Judge dated 23-5-1991 for dismissal of application of the appellant for grant of leave to appear and defend the suit and passing the decree is not sustainable. The appeal is accepted. The said order, judgment and decree is set aside. The application of the appellant for grant of leave to appear and defend the suit is accepted. He is granted leave to appear and defend the suit subject to his furnishing security to the satisfaction of the trial Court in the sum of Rs. 1,82,280.00 within one month from today i.e. on or before 1 8-4-1993. The parties are left to bear their own costs. 8. The parties are directed to appear before the trial Court on 8-4-1993. (MBC) (Approved for reporting) Appeal accepted

PLJ 1993 Lahore 306 PLJ 1993 Lahore 306 [Bahawalpur Bench] Present: Ausaf Ali Khan, J Mis AL-FARIDIA INDUSTRIES, UCH-SHARIF ROAD, AHMEDPUR SHARQIA — Appellant versus Mis ALFA INSURANCE CO. LTD and 4 others - Respondents F.A.O No.24/BWP of 1992, dismissed on 18-1-1993 Arbitration Act, 1940 (X of 1940) S.34 — Recovery of money - Suit for — Stay of proceedings under Section 34 — Challenge to — Whether seeking adjournments for filing written statement amounted to taking further steps in proceedings — Question of - Whether a particular act of defendants amounts to a step in proceedings, is necessarily a question of fact and court while determining it, has to take into account contents of petition as well as surrounding circumstances of case — Agreement appended with application under Section 34 of Act expressly stipulated that reference to arbitration was a condition precedent — Held: Trial court was not far wrong in holding that application under Section 34 was made by defendant before tiling of written statement or taking any other step in proceedings ~ Appeal dismissed. [Pp.309 & 310] A&B PLJ 19981 SC 878 rel. PLD 1965 Dacca 260, PLD 1970 Lahore 184 PLD 1978 Quetta 215 and 1988 SCMR 310 (2) distinguished. Mr. M.M. Bhatti, Advocate for Appellant. Mr.Bashir Akhtar Khan, Advocate for Respondents 1 & 2. Sh. Liaquat Majid, Advocate on behalf of Malik Saeed Ijaz, Advocate for Respondent No. 3 Mr. M. Shafiq Chaudhry, Advocate for Respondents 4 & 5. Date of.hearing: 13-1-1993. JUDGMENT The question that falls for determination in this first appeal (after having been converted from Civil Revision) is if the prayer for adjournment for filing written statement on more than one date amounts to taking "steps in proceedings "to disentitle the defendant to ask for stay of proceedings under Section 34 of the Arbitration Act X of 1940. 2. The appellant had sued the defendants for recovery of fifty seven lac forty two thousand four hundred and seventeen rupees (Rs.57,42,417.00). The suit was brought on the 27th of February, 1990. Service on the defendants, however, could be completed on the 20th of June, 1990. Request for filing written statement was made. The case was adjourned to the 1st of September, 1990, for the purpose. The learned Civil Judge was on leave on that day and he remained on leave till the 22nd of January, 1991, and the suit was adjourned on the intervening dates. On this date certain counsel appeared on behalf of the original counsel of the defendants and again the case was posted to the 9th of March, 1991, for submission of the written statement. On this date, an application under Section 34 of the Arbitration Act (hereinafter referred to as to the Act) read with Section 151 of the Code of Civil Procedure, was submitted with a prayer to stay the proceedings for reference of the matter to arbitrator as per clauses 18 and 19 of the Insurance Policy Agreement. This petition was opposed by the appellant mainly on the ground that by seeking adjournments for filing written statement for a period of about one year the defendants had forfeited their right to stay the matter. 5. The learned trial Court, by virtue of order dated the 2nd of December, 1991, impugned in this appeal, spurned the objection of the appellant and stayed the proceedings till decision of the arbitration. 6. It need not be gain said that the Court before which proceedings are pending may make an order staying the proceedings if the condition inter alia is fulfilled that the application is made at any time before filing a written statement or taking any other step in the proceedings. 7. The learned counsel for the appellant has reiterated the contention, raised before the learned trial court, that the act of seeking adjournments to file the written statement by the defendants amounted to taking "steps in proceedings" and, therefore, they shall be deemed to have submitted to the jurisdiction of Civil Court and waived their right to arbitration. In support of the contention the learned counsel relied upon the following precedents: 3. Muhammad Idris and others v. Tobarak Hossain (PLD 1965 Dacca 260); 4. G.M. Pfaff A.G. v. Sartaj Engineering Co. Ltd., Lahore and 3 others (PLD 1970 Lah. 184); 5. Government of Baluchistan and others v Mir Qadir Bakhsh & Sons (PLD 1978 Quetta 215); and 6. Ghulam Sarwar ami others v. Mazharullah (1988 SCMR 310 (2)). 6. In the case of Muhammad Idris, the defendant had filed the petition under Section 34 of the Act with the words "that the defendants will contest the suit instituted by the plaintiff and submit a written statement in the suit" and in the prayer portion was stated: "It is, therefore, prayed that your honour would be pleased to grant an adjournment for filing of written statement in the interest of justice." The view taken was that the request was indicative of preparation for contest and the petitioner had submitted to jurisdiction of the Civil Court. 7. In G.M. Pfaff A. G. 's case, an application under Order XXXIX, rules 1 and 2, C.P.C., and Section 53 of the Specific Relief Act was also filed alongwith the plaint. A "written statement" on behalf of the defendants was presented with preliminary objection about reference of the dispute to the arbitrators. In fact, what was submitted was a reply to the said injunction petition and not written statement. The objection of the plaintiff that the defendants had submitted to jurisdiction of the Court was repelled with the observations that there was a subsisting agreement between the parties to refer the dispute to arbitration; that the dispute raised in the litigation fell within the scope of that agreement; and -that the application was filed before filing "a written statement or taking any other steps in the proceedings". An observation as obiter dicta was also made that such an application was after all a procedural matter and the rules of law relating to procedure have always to be construed so as to suppress the mischief and advance the remedy and are not to be utilized as clogs in the way of advancing the cause of justice. This ruling, in fact, goes against the appellant and favours the view taken up by the learned counsel for the defendants - applicants. 1. The facts of the Government of Baluchistan and others'' case are entirely different from the facts of the present one as Government Pleader appearing on behalf of the Government of Baluchistan, defendant in that case, had sought several dates of hearing making several applications, requesting adjournments, applying for setting aside ex pane order, moving application under Order VII, rule 19, C.P.C. In such a situation the defendant was rightly held to have taken "steps in proceedings". 2. In the last case, the Supreme Court had upheld the order of the High Court disentitling the defendant to invoke arbitration clause and ask for stay of suit as "The High Court, on the basis of the evidence on the record, found that the petitioners had taken steps in the proceedings". In this short order the Supreme Court had not granted even leave to appeal. 3. The learned counsel for the respondents has defended the impugned order by making reference to the Supreme Court case re: Pakistan International Airlines Corporation v. M/s Pak Saaf Dry Cleaners (PLJ 1981 S.C. 878). In this case the Supreme Court fully illuminated the questions as to when proceedings are to be stayed to respect the arbitration clause and how the application and concomitant circumstances are to be examined to determine "steps in proceedings". The facts of the case were that on the date fixed for submission of written statement, the counsel applied for extension of time to file written statement on the ground that the Law Officer concerned, who was dealing with the case, had gone out of the country and was 'expected back by the end of the next month. On the next date the counsel again filed another application for extension of time on the ground that written statement could not be prepared due to the Officer Incharge being out of Karachi . A request was again granted and next date of hearing was fixed and in the meantime the party informed its counsel about existence of arbitration clause where up&n the learned counsel submitted the petition under Section 34 of the Act for stay of the proceedings on the date fixed. The learned Judge of the High Court rejected the petition on the ground that the defendant in applying for the time to file the written statement had displayed submission to jurisdiction of the Court and had taken steps in the proceedings. The Supreme Court did not agree to this view and held that in the circumstances request for adjournment was not a step in proceedings and so because non-submission of copy of agreement alongwith the plaint in suit had fundamentally contributed to the seeking of adjournment by the counsel and as soon as the party had drawn attention of its counsel to arbitration clause the counsel had filed the petition under Section 34 of the Act. Here, it would be profitable to quote below the observation of the Supreme Court laying down the guidelines for dealing with such a situation: " In my opinion, the true tests for determining whether an act is a step in the proceedings is not so much the question as to whether the party sought an adjournment for filing the written statement although of course that would be a satisfactory test in many cases -- but whether taking into consideration the contents of the application as well as all the surrounding circumstances that led the party to make the application display an unequivocal intention to proceed with the suit, and to give up the right to have the matter disposed of by arbitration." 11. In the instant case, although the defendants had submitted the petition under i Section 34 of the Act after considerable time, yet the conduct could not be taken as] palpable as to disentitle them to benefit of availing the arbitration clause. The' service of the defendants in this case had completed on the 20th of June, 1990, and thereafter the learned trial Court remained on long leave. The order dated the 22nd of January, 1991, suggests that the learned Civil Judge had resumed the duties by that time and on that day the case was adjourned and posted to the 9th of Ma&rtl, . 1991, for filing the written statement as requested by the learned counsel. On the 9th of March, 1991, instead of filing the written statement, the application in question was filed. Whether a particular act of the defendants amounts to a step in' the proceedings is necessarily a question of fact and the Court while determining has to take into account the contents of the petition as well as the surrounding circumstances of the case. The learned trial Court was not far wrong in answering the question of fact in favour of the applicant. There was no evidence on the record that the appellant had filed Insurance Policy Agreement alongwith the plaint under Order VII, rule 14, C.P.C. or that its copy was sent to the defendants or their counsel so that they could invoke the arbitration clauses 18 and 19. The agreement appended with the application under Section 34 of the Act expressly stipulated that reference to an arbitration was a condition precedent to any right of action or suit.upon that insurance policy. 12. The upshot of the discussion is that there was a subsisting arbitration agreement between the parties; that the dispute raised in the present litigation fell within the scope of that agreement; and that the application under Section 34 of the Act was made by the defendants before filing the written statement or taking any other "step in proceedings". The delay in submission of the application under Section 34 of the Act stood explained. The impugned order of the learned trial court to stay the proceedings in the circumstances is unexceptionable. The appeal, therefore, stands dismissed. The parties are, however, left to bear their own costs. (MBC) (Approved for reporting) Appeal dismissed

PLJ 1993 Lahore 310 PLJ 1993 Lahore 310 [ Multan Bench] Present: MIAN GHULAM AHMAD, J. NOOR KHAN - Petitioner versus SECRETARY TO GOVERNMENT OF PUNJAB , REVENUE, LAHORE.and 2 others — Respondents Writ Petition No. 1528 of 1993, dismissed on 1-4-1993 Transfer Government servant — Transfer of — Challenge to ~ There is no force in plea that without assigning any reason or before expiry of normal tenure, a civil servant is not liable to transfer anywhere — Similarly, contention that petitioner has to look after his ailing parents or that he would face, a host of problems and hardships including disturbance to his family life or education of children, has no relevance - Held: A public functionary does not have a vested right to remain at a particular place or to serve in a specified capacity — Petition dismissed. [P.311JA Sh. Dilawar Hussain, Advocate for Petitioner. Date of hearing 1 -4-1993. ORDER The petitioner, who is a Tehsildar, presently serving as Consolidation Officer, Alipur, District Muzaftargarh, has been ordered to report to the Board of Revenue for his further posting, vice M. Tanvir Durrani, respondent No.3. He has filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan. 2. There is obviously no force in the plea that without assigning any reason, or bore expiry of the normal tenure, a civil servant is not liable to transfer any where. Similarly, the plea that the petitioner has to look after his old ailing parents or that he would face a host of problems and hardships, or his family life' or education of children would be disturbed, in the event of his transfer, has no relevance. The learned counsel has not been able to satisfy the Court as to how, as is maintained, any inalienable right available to the petitioner has been infringed. A public functionary does not have a vested or constitutional right to remain at a particular place or to serve in a specified capacity. The petition has no merit and is hereby dismissed in lirnine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 311 PLJ 1993 Lahore 311 Present: falak sher, J REGIONAL HEAD, NATIONAL BANK OF PAKISTAN , PRINCIPAL OFFICE, FAISALABAD and another-Petitioners versus MAHBOOB ELAHI and 2 others-Respondents Writ Petition No. 9206 of 1992, dismissed on 1.2.1993 Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —S. 25-A~Employee of National Bank—Termination of services of~ Reinstatement with back benefits of—Challenge to—Contention that appointment of respondent No. 1 was irregular for non-relaxation of age limit and was secured through political pressure-Petitioner No.l being competent authority, admittedly not only failed to apprise authorities concerned about alleged shortcoming but also confirmed .respondent's appointment after completion of probation period—Held: Blamdworthiness, if any, is patently ascribable to petitioner No. 1 and he being highly paid parasite on national ex­ chequer, cannot be allowed to reprobate in extraordinary jurisdiction—Petition dismissed. [P.312JA&B Kh. Muhammad Farooq, Advocate for Petitioner. Date of hearing: 1.2.1993. order Resume of the necessary facts for resolving the present controversy as divulged from the record are that Mehboob Elahi, respondent, having been appointed as Cashier on 27.3.1990 on six months probation, was confirmed in service by petitioner No. 1 which was terminated by the latter on 1.6.1991, legality whereof was successfully questioned by the respondent by virtue of grievance petition contemplated by Section 25-A of the Industrial Relations Ordinance, 1969 and was reinstated in service.with back benefits on 18.2.1992 by the learned Presiding Officer, Punjab Labour Court No. 4, Faisalabad on the ground that neither any show cause notice nor the disciplinary proceedings contemplated by the National Bank of Pakistan Staff Service Rules, 1980 preceded the termination order and in appeal was affirmed vide the impugned order dated 19.5.1992 by the learned Punjab Labour Appellate Tribunal; feeling aggrieved thereby, present constitutional petition was recoursed contending that the appointment was irregular for non-relaxation of the age limit and was secured through political pressure. Be that as it may, petitioner No. 1 being the competent authority, admittedly not only failed to apprise the authorities concerned as to the alleged shortcoming but also confirmed the respondent's appointment upon successful completion of the probation period and subsequently acted purely mechanically abdicating his discretion in terminating the respondent's services without application of independent mind, therefore, blameworthiness, if any, is patently ascribable to the petitioner being highly paid parasite on the national exchequer, thus can't be allowed to reprobate the same in this extraordinary jurisdiction; consequently, on this short ground alone, the petition is hereby dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 312 PLJ 1993 Lahore 312 Present:GUL ZARIN KlANI, J Mst. NATHI-Petitioner versus Mst. HAMIDAN and others-Respondents Civil Revision No. 695/D of 1989, accepted on 62.1993 Civil Procedure Code, 1908 (V of 1908)-- —-S. 12(2)--Pre-emption--Suit for-Suit decreed on acceptance of offer of defendants for payment of enhanced price-Later on application under Section 12(2) C.P.C. filed by petitioner as well as her appeal were dismissed on ground of bar of fresh decree after target date of 31.7.1986~Existence of decree before 31.7.1986 was material and its reversal was inconsequential-In her application under Section 12(2) CPC, petitioner had prayed for being relieved of unauthorised act of Muhammad Shabbir who held no authority from her (to accept offer of defendant that suit be decreed if petitioner-plaintiff was willing to pay Rs. 18000/- as price of land)-Held: Lower courts wrongly found a bar for them for passing a fresh decree in pre-emption suit after target date-­ Petition accepted and case remarfded for decision of appeal on merits. [P.315JA&B [PLJ 1988 SC 224,1992 SCMR 1328, PLJ 1992 SC 469 and 1991 SCMR 1443 ref. Mr. Jariullah Khan, Advocate for Petitioner. Mr. S.M. Tayyab, Advocate for Respondents. Date of hearing: 6.2.1993. judgment Civil Revision by the plaintiff arises out of a pre-emption suit. It was dismissed by the trial Court, on 30.7.1988. Appeal from the decision failed on 2.2.1989. Relevant facts are:- 15^ kanals of land at Chak No. \54-Shumali, in Tehsil and District Sargodha, belonged to Muhammad Ashiq son of Ali Nawaz. By a deed registered on 19.6.1976, he sold it to Ghulam Muhammad son of Muhammad AM for a consideration of Rs. 13,OQO/-. Mst. Nathi, as mother of the vendor claimed preTemption, in respect of the above sale and sued for it on 16.7.1976, Defendants submitted their written statement and contested the pre­ emption suit. On 18.12.1976, the trial Court settled material issues which were as many as eight in number including that of relief. Plaintiff gave her evidence. Upon its conclusion, suit was adjourned for defendant's evidence. Before his evidence could be taken, his son Shabbir Hussain proposed that if the plaintiff was agreeable to pay Rs. 18,000/-. for the land-in-dispute to the defendant, pre­ emption suit may be decreed against him. Muhammad Shabbir for the plaintiff accepted the offer. Consequently, the pre-emption suit was decreed by the trial Court on 2.6.1982, subject to payment of Rs. 18,000/- as the sale-price for the land-in-dispute. Plaintiff deposited the sale-price in time, fixed in the decree of the trial Court. On 23.8.1982, plaintiff submitted an application under Section 12 (2) of Civil P.C. for setting aside of the decree, on the ground that she had not authorised Muhammad Shabbir for consenting to the payment of sale-price and he was not her authorized agent to bind her by his act. Successors of Ghulam Muhammad, who died, mainly resisted the application. Upon conclusion of plaintiffs evidence in respect of the application under Section 12(2) of Civil Procedure Code, on 29.6.1984, learned counsel for successors of deceased Ghulam Muhammad agreed to the setting aside of the consent decree and decision of the suit on merits. Thereupon, the original decree was set aside and the suit was tried on merits between the parties. At re-trial, pre-emption suit was mainly dismissed in the trial Court, on score of bar for passing of a fresh decree on or after 31.7.1986, set in case of Sardar AH and others v. Muhammad Ali and others PLJ 1988 S.C. 224. Though, the trial Court gave findings on merits but the learned appellate Judge confined himself merely to the application of above bar and maintained the judgment of the trial Court on its basis alone. From the above statement of facts, it was to be seen, whether setting aside of the decree passed on 2.6.1982, in proceedings taken under Section 12(2) CPC by the plaintiff was any bar for a fresh decree in the pre-emption suit, on account of the judgment of the Supreme Court, in the case of Sardar Ali. In case of Sajjad Hussain and 4 others v. Meharban and 5 others 1989 CLC 1727, I took the view that upon setting aside of the exparte decree passed hi the pre-emption suit before 31.7.1986, a fresh decree in the pre-emption suit thereafter, could not be passed because of a bar set in the case of Sardar Ali. My view was not accepted by the Supreme Court. View taken was that an exparte decree was as good as any other decree of a competent Court and its later setting aside was not a bar for the Court to pass a fresh decree in the pre-emption suit, on or after 31.7.1986. Though, I have not been able to locate the decision of the Supreme Court given in appeal from my decision but a judgment of the Supreme Court on the same lines was available in Ghulam Rasool and 2 others v. Faiz Bakhsh 1992 S.CM.R. 1328 and Bahadur Khan v. Muhammad Yousaf and another PLJ 1992 SC 469. Similarly, my decision given on 21.6.1988, in R.SA.Nos. 629, 630 of 1975 at Rawalpindi Bench of the Lahore High Court was upset in appeal by the Supreme Court hi Muhammad Ismail' through his legal heirs and others v. Ghulam Haider and 3 others 1991 S.C.M.R. 1443 with the observations that:~ "So far as the constraints of decision of Sardar Ali's case are concerned, two features have to be noted. Firstly, the rights held protected under that decision were those in which the right to pre-empt the sale was recognised. It was not dependent on the nature and extent of the relief granted. If the rights stood recognised, then in the matter of relief, increase and decrease in the area or share could take place without violating the law laid down by this Court in Sardar Ali's case. . Secondly, what was recognised in Sardar Ali's case was a right to pursue his remedies after a decree has been obtained in recognition of his right. There may take place remands and reversals of the decree but the pursuit . of the pre-emptor, once a decree has been passed before the relevant date, can continue undeterred and uninterrupted. On this view of the matter, the decision in Sardar Ali's case was no bar to the grant of relief which the High Court thought the pre-emptors eminently deserved". The mode and manner chosen for setting aside of the decree was immaterial. Important fact was the existence of a decree in the pre-emption suit before 31.7.1986. Its later reversal was inconsequential. However, I may hasten to put in a word of caution that a judgment and decree grounded in and wholly tainted with fraud may not be sanctified by the Court for building up future rights to the property. Since this point is not before me, I may not risk a considered opinion on it, and, shall leave it for future examination upon an appropriate occasion. In the case under consideration, though the application was addressed to the trial Court under Section 12(2), Civil P.C. yet in essence, the Court was petitioned by the plaintiff for relieving her of the unauthorized act of Muhammad Shabbir who held no authority from her. There is no clear finding on fraud by the trial Court. The decision proceeded on a concessional statement from the defendant for agreeing to the setting aside of the decree in the pre-emption suit. There was neither approbation nor reprobation in the act of a fresh decree. The lower Courts wrongly found a bar for them for passing of a fresh decree in the pre-emption suit. In view of the aforesaid, Civil Revision is allowed, impugned judgment and decree of learned Additional District Judge, Sargodha dated 2.2.1989 are set aside and the case is remanded to learned District Judge, Sargodha for deciding of the appeal presented by Mst. Nathi on all issues afresh in accordance with law. There shall be no order as to costs in this Court. Parties shall appear before the learned District Judge on 6.3.1993. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 315 PLJ 1993 Lahore 315 Present: GUL ZARIN KIANI, J GHULAM HUSSAIN and 7 others-Petitioners versus MEHDI HASSAN KHAN and 6 others-Respondents . Civil Revision No. 627/D of 1988, dismissed on 22.2.1993 Civil Procedure Code, 1908 (V of 1908)- —S. 115-Specific performance of agreement to sell—Suit for—Dismissal of suit- -Challenge to—In face of a clear denial of execution of agreement to sell, plaintiffs were obliged to produce its marginal witnesses to remove all conceivable doubts about its genuineness, but they failed to discharge that obligation—Record leads to an irresistible conclusion that agreement to sell was not proved in hand of respondent No. l~Held: Agreed conclusion on ungennineness of Ex. P.I (agreement to sell) is beyond reproach and immune from interference in revisional jurisdiction-Petition dismissed with costs. [Pp.317&318]A&B Mr. Ghulam Mustafa Jafri, Advocate for Petitioners. Mr. Muhammad Zafar Chaudhry, Advocate for Respondents 1 to 4. Date of hearing: 22.2.1993. judgment This civil revision by the plaintiffs arose out of a civil suit.filed by them for a relief of specific performance respecting an agreement to sell in their favour. Suit was instituted on 25.7.1968. It was dismissed on merits by the trial Court. An appeal from the decree of the trial Court failed on 8.2.1988, in the Court of Additional District Judge, Kasur. Dispute concerned House No. 29/68, situate in Qila 'Rupa Singh of Town Committee Chunian, in District Kasur. It was owned by a non-Muslim evacuee. It was initially allotted to Ghulam Hussain-petitioner No. 1, in the year 1948. He did not pay the necessary dues. Consequent upon it, disposal of the house was put to auction and it was purchased by Nazar Muhammad Khan. P.T.O. was issued in his favour on 19.12.1960 and P.T.D. on 26.2.1965. Nazar Muhammad Khan constituted Mehdi Hassan Khan, his attorney by a deed registered on 29.12.1965. Original or certified copy of the registered power of attorney was not on file. A reference to it is available in the certified copy of the registered sale deed Ext. D.I. Ghulam Hussain son of Abu-al-Fazal, Miraj Din son of Barkat Ali, Muhammad Afzal, and, Ali Hassan claimed that Nazar Muhammad Khan through his general attorney Mehdi Hassan Khan had agreed for the sale of the above house to them for a consideration of Rs. 3250/-. Agreement to sell was reduced in writing on 28.3.1967, and, a sum of Rs. 500/- was paid was earnest money. Date for finalization of the sale was fixed on 20.4.1967. It was asserted that in terms of sale-agreement concluded with them, Nazar Muhammad Khan had not completed the sale. Instead, the house was sold by him to Mst. Batool Begum wife of Mehdi Hassan Khan, on 27.7.1967, through a registered sale-deed. Relying upon a prior agreement to sell in their favour, they brought a civil suit for specific performance against Mehdi Hassan Khan, Muhammad Ramzan Khan, Khair Din and Mst. Batool Begum. Necessary averments on the lines noted above were made in the plaint of the suit for specific performance. Defendants No. 1, 2 and 4 submitted separate written statements and denied the averments in the plaint respecting prior agreement to sell in favour of the plaintiffs. On 14.7.1976, the trial Court found the suit to have abated, and dismissed it. On appeal, the decision was reversed and the suit was remanded to the trial Court for its fresh decision on merits after framing of issues. On 22.4.1984, the trial Court framed necessary issues. Thereupon, it took evidence from the parties. Upon its scrutiny, the suit was dismissed on 21.5.1986. On 26.3.1987, this decision was reversed, in appeal, by learned Additional District Judge, who remanded the suit to the trial Court to proceed with it after complying with the provisions of Order XIII, Rule 4 of Civil P.C. On 15.4.1987, the trial Court again dismissed the suit on merits mainly on the ground that truth of agreement to sell Ext.P.l was not established. On appeal, this decision was affirmed by learned Additional District Judge, Kasur, on 8.2.1988. Hence, the instant civil revision, which was admitted to hearing, on 19.9.1992. Seen from the above, civil revision raised only a point regarding genuineness of agreement to sell Ext.P.l respecting the house in dispute. Lower Courts found that its execution by Mehdi Hassan Khan was not proved. In my view, the conclusion is unexceptionable. Testimony of PW-1 is immaterial. PW-2 Muhammad Ramzan deposed that he had scribed agreement to sell dated 28.3.1967 marked Ext.P.l, on the file. His cross-examination has shattered his credibility, and, also genuineness of Ext.P.l. Overwritings in Ext.P.l were not owned by him. He admitted that neither Mehdi Hassan thumb-marked Ext.P.l, nor was he present on the occasion of writing of Ext.P.l. He further admitted that Mehdi Hassan had not asked him to write Ext.P.l. Ghulam Hussain son of Abual-Fazal as PW-3 gave evidence in support of the agreement to sell and payment of part consideration under it. Agreement Ext.P.l bears his signature. Apart from its scribe, Miraj Din, Ilam-ud-Din and Shabbir Hussain were its marginal witnesses. It bore their thumb-impressions and signature respectively. None from them appeared at the trial to support its execution by Mehdi Hassan. It was significant that Mehdi Hassan did not sign or thumb-mark the agreement to sell. Muhammad Ramzan PW-2 categorically deposed that Mehdi Hassan was not present at the occasion. Execution of Ext.P.l at the instance of Mehdi Hassan, in the above circumstances, was inconceivable. Since Muhammad Ramzan had denied overwritings at material points in Ext.P.l, an application for comparison of his signature on Ext.P.l with his sample signature was made to the trial Court. Other side resisted the application. On 3.11.1984, the trial Court gave permission for comparison of signatures. Sample signatures of Muhammad Ramzan were taken in Court. However, on 27.11.1984, the request for comparison of signatures by an expert-witness was abandoned and the matter was, thus, dropped. Muhammad Hanif Khan DW-1, Mst. Batool Begum DW-2, and, Mehdi Hassan DW-3 gave evidence to falsify Ext.P.l and establish the sale of the house in dispute in favour of Mst. Batool Begum through a registered sale-deed on 27.7.1967. In face of a clear denial of execution of agreement to sell Ext.P.l by Mehdi Hassan, the plaintiffs were obliged to produce its marginal—witnesses to remove all conceivable doubts about its genuineness. The plaintiffs failed to discharge that obligation. Learned counsel for them submitted that marginal witnesses were dead at the time of taking of evidence by the trial Court. I have a little difficulty to accept the statement at its face value. There is no proof of this fact on .the record. On behalf of the petitioners,<Ext.P.2 was heavily relied upon. It did not much assist them. Nazar Muhammad was dead before the suit for specific performance was filed. Nonetheless, Ghulam Hussain brought a suit against him through his Mukhtar-Aam Mehdi Hassan for a declaration and relief of perpetual injunction. The suit was dismissed by way of compromise on 27.2.1968. In absence of the plaint of the suit, its nature was not ascertainable. Further, any compromise entered into between an alleged heir of Nazar Muhammad with Ghulam Hussain on 27.2.1968 did not materially affect the genuineness of sale-deed dated 27.7.1967, in favour of Mst. Batool Begum. She had already purchased the house, when the alleged compromise was shown to have been made. In her absence, her rights in the property could not be bartered away so lightly. Be that as it may, the record led to an irresistible conclusion that agreement to sell Ext.P.1 was not proved in the hand of Mehdi Hassan Khan. Independent of Ext.P.1, there was no antecedent agreement for sale of the house, either by Nazar Muhammad Khan or his attorney. Therefore, agreed conclusion on the ungenuineness of Ext.P.1 was beyond reproach and immune from interference in revisional jurisdiction. On the file of the trial Court, there was an order of learned Additional District Judge, Kasur, passed in Civil Appeal No. 31 of 1977 on 13.11.1977. It showed -that Mst. Batool Begum had sued Ghulam Hussain for his ejectment from the house in dispute. Ejectment petition was dismissed, on 16.9.1976, by the Rent Controller, on the ground that relationship of landlord and tenant was not established. But in appeal, the decision by the Rent Controller was reversed and ejectment case was remanded for proceeding on merits. However, final order on the ejectment case was stopped, till the decision of the suit for specific performance. In all these years, Ghulam Hussain enjoyed possession of the property without sharing its income with the true owner. In view of foregoing discussion, I see no force in the civil revision and dismiss it with costs assessed at Rs. 2,000/-. If the ejectment case is still pending, Rent Controller shall revive it for its decision with utmost expedition. Records be returned forthwith. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 318 PLJ 1993 Lahore 318 Present: gul zarin kiani, J MUHAMMAD SALEEM KHAN and another-Petitioners versus MEMBER, BOARD OF REVENUE, PUNJAB and 3 others-Respondents Writ Petition No. 4715 of 1984, accepted on 24.1.1993 Judgment —Pre-emption-Suit for-Ultimate dismissal of suit by Respondent No.l- Challenge to—Even a prima facie glance at impugned judgment would amply demonstrate that it considerably falls short of legal requirements of a proper judgment by a court of law deciding on rights of parties-Respondent No.. 1 was obliged to examine material available to it like a civil court-He neither adverted to oral evidence nor addressed himself to revenue records, yet he reversed decision of Additional Commissioner with observation consisting of few lines—Held: Brief and sketchy judgment did not meet requirements of law and also failed to satisfy searching mind of a litigant—Petition accepted and rehearing of appeal ordered, [Pp.320&321] Malik Amjad Pervaiz, Advocate for Petitioners. Ch. Muzammal KJian, Advocate for Respondents 3&4. Date of hearing; 24.1.1993. judgment By a deed registered on 27.2.1975, Muhammad Ismail sold his 267 kanals, 8 marlas of land, in village Dev-Sami of Tehsil and District, Lahore for a consideration of Rs. 65,000/- to Muhammad Saleem Khan, and his brother Chhota Khan. They were defendants in the pre-emption suit and were petitioners in this Court. Nawab Din son of Sidha and his two sons namely Ghulam Muhammad and Ibrahim asserting to be tenants-in-occupation of the above land claimed pre-emption in respect of its sale and brought a pre-emption suit, in the civil Court at Lahore. Upon enforcement of Act XLVIII of 1976, the pre-emption suit was transferred to the file of Collector, Lahore/A.D.C (G), who upon holding its trial on merits gave decree for pre-emption in respect of the entire land to the pre-emptors, subject to their payment of Rs. 65,000/- within one month from the date of the decree. Vendees preferred an appeal to Additional Commissioner (Revenue)Lahore Division, Lahore . Appeal was allowed on 21.4.1983, and pre­ emption suit dismissed in toto. Upon a further revision to Member, Board of Revenue, preferred by the pre-emptors, decision by the Additional Commissioner (Rev.) was set aside and that of the Collector restored on 9.7.1984 by the learned Member Board. Thereupon, a petition in extraordinary jurisdiction, was presented to this Court by the vendees for setting aside of the last decision and consequent dismissal of the pre-emption suit filed against them. Only point surviving for decision in the writ petition was about superior right of pre-emption claimed by the respondents. They gave oral evidence and tendered copies of revenue records in support of it. Vendees also gave evidence in rebuttai. Trial Court found the issue relating to superior right, of pre-emption in favour of the respondents, and, court-fee paid upon the plaint sufficient. Learned Additional Commissioner devoted much of his attention to the issue of delated payment of court-fee on the plaint and having found it against the respondents addressed himself to the question of tenancy in Para-7 of his judgment. It reads:— "As for the tenancy, the pre-emptor is supposed to prove his possession at all the three stages of the case i.e., at the time of sale, at the time of institution of the suit and at the time of passing of the decree. The possession of the respondents at all the three stages of the case is proved only on few khasra numbers while the documentary evidence negates the rest. The major portion of the land has been shown under the cultivation of Ismail, vendor and three other persons i.e., Audoh, Ah' Muhammad and Ghulam Rasool. It will be appreciated that according to the Evidence Act, documentary evidence is more authentic and weighty than the ocular evidence on the same point. Therefore, the unchallenged record of khasra girdawari would prevail in the matter of tenancy. I would have kept the decree intact to the extent of the khasra number which remained under the tenancy of the respondents at all the three stages of the case, but for the deficiency in the court-fee, which has proved fatal to the right of the respondents." From the extract quoted above, it must be clear that the Additional Commissioner was not satisfied with the fullness of the preemptive right claimed by the respondents regarding the entire land. In revision, learned Member had dealt with the point respecting tenancy as:~ "On the question of tenancy, the learned Additional Commissioner has also not mentioned any specific field Nos. on which the continuous tenancy of the petitioners was not established. Here again his findings seem to be based on some impression, the details of which are not available in his orders". This was all that the learned Member said on the disputed tenancy in his final order. He felt content with it and set aside the decision by the Additional Commissioner on this score. Even, a prima-facie glance at the judgment would amply demonstrate that it considerably falls short of legal requirements of a proper judgment by a Court of law deciding on the rights of the parties. Sub-para- 7- of Para-25 of the Land Reforms Regulation conferred revisory powers on the Board of Revenue to. satisfy itself as to the correctness, legality or propriety of the proceedings or orders made by authorities subordinate to it. In the process of opinion-making on the correctness, legality or propriety of the proceedings or orders sought to be revised, the Board was obliged to examine the material available to it likp a civil Court. Learned Member, neither adverted to oral evidence nor addressed himself to the revenue-records and yet he reversed the decision of Additional Commissioner and restored that of the Collector with observations consisting of few lines. He may have looked into the record but his judgment did not indicate so. A party bringing his cause to the Court for adjudication was entitled to know the reasons how his cause was dealt with. Brief and sketchy judgment did mot meet the requirements of law and also failed to satisfy the searching mind of a litigant. Revision in Para-25 was not hedged in by restrictions mentioned in Section 115 of Civil Procedure Code. Had it been a case of an appeal, I would have dealt with it on its merits for a final judgment but the scope in writ jurisdiction being limited and also prohibitive of substitution of opinion, the matter required fresh consideration in the proper forums. In the context, the proper forum would be the Additional Commissioner's Court and the parties were agreed on that forum. I would, therefore, accept the writ petition, set aside the orders dated 9.7.1984 of learned Member, Board of Revenue and that of learned Additional Commissioner (Rev.) dated 21.4.1983 and direct re-hearing and decision afresh of the appeal upon the existing records by the learned Additional Commissioner (Rev) on the limited point relating to superior right of pre-emption claimed by the plaintiffs-respondents. There shall be no order as to costs in this Court. Parties shall appear before the learned Additional Commissioner (Rev.) Lahore Division, Lahore on 1.2.1993. Records be returned. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 321 PLJ 1993 Lahore 321 Present: CH. MUSHTAQ AHMAD KHAN, J MUHAMMAD AKRAM and 2 others-Petitioners versus LAHORE DEVELOPMENT AUTHORITY, through its Director General- Respondent Civil Revision No. 1114 of 1992, accepted on 30.1.1993 (Approved for reporting on 13.2.1993) Civil Procedure Code, 1908 (V of 1908)- —O.XXXIX Rr. l&2-Temporary injunction-Grant of-Prayer for~ Admittedly Transfer Order of Plot No. 89-C still exists in name of petitioners as is also clear from report of re-verification of T.O-From naked eye, it cannot be said that it is a case of forgery-It cannot be said that petitioners do not have aprimafacie case-If plot in dispute is put to auction, petitioners shall definitely suffer an irreparable loss and it will result in multiplicity of proceedings—Absence of possession is not at all relevant factor to decide application for stay order-Held: Dispute regarding title being pending adjudication before court of competent jurisdiction, it is necessary that status quo order be maintained during pendency thereof-Petition accepted. [Pp.325&326]A,B&C 1969 SCMR 254 not applicable. PLD 1975 Lahore 492 and PLD 1971 SC 762 rel. Mr. Muhammad Rafiq KJian Chohan, Advocate for Petitioners. Malik A.R. Arshud, Advocate for Respondent. Date of hearing: 30.1.1993. judgment Briefly stated facts of the case on the basis whereof the present Civil Revision has arisen are that the petitioners claimed themselves to be the owners of plot No. 89-C consisting of khasra Nos. 300 and 301 of Mauza Guru Mangat, Gulberg-III, Lahore measuring 15 marlas, which was allegedly transferred to them by the Deputy Settlement Commissioner, Lahore vide Transfer Order dated 16.12.1976. On the basis of this order, T.O. No. 75972 was issued. The order of transfer and the deed of T.O. have been appended at pages 45 and 47 of the paper book. Subsequently, the dispute arose between the petitioners and the respondent with-regard to the ownership of the plot in question, inasmuch as the respondent claimed that the plot 89-C belongs to L.D.A., therefore, the petitioners have no ownership or possessory rights in the plot in question. Construction raised by the petitioners was demolished by the respondent. Consequently, a suit for declaration of title as well as a decree for mandatory injunction was sought for the restoration of the possession of the plot-in-question. The suit was contested and on the basis of the statement of the learned counsel for the respondent dated 14.2.1981, according to which, it was stated that in case the T.O. in question is genuine, the L.D.A. will have no objection to treat the petitioners as owners, and will exempt the plot in the name of the petitioners, hence a decree was passed in terms of the aforementioned statement in favour of the petitioners. It is alleged by the petitioners that subsequently this decree was not complied with by the respondent, therefore, an application seeking execution of the said decree was filed in the Court of learned Civil Judge, Lahore, and the respondent filed objection petition in the said execution proceedings. Initially an order of attachment in relation to the plot in question was passed but this order was setaside in appeal filed by the respondent and the matter was remanded to the Executing Court after framing of the following issues:- 8. Whether the P.T.D. in favour of the decree-holder (concerning the property in decree) is genuine/ OPA. 9. Whether the decree-holder is willing and ready to pay the legal development charges to the L.D A.? OPA, with a direction that the matter shall be decided after recording evidence. The petitioners are stated to have completed their evidence, whereas the evidence of the respondent is yet to be recorded. According to the learned counsel, the next date of hearing for production of evidence of the respondent is 24.2.1993. It is alleged that during the pendency of these proceedings, a full Board of the Settlement Department, of which an Officer of the L.D A. was also a member.(?) The Board verified that T.O. No. 75972 was genuine, and a re-verification report in this behalf was submitted, which has been appended with this revision petition as Annexure 'G'. When these proceedings were going on, the respondent treating the said plot as its own included the same in the auction list and advertised for its disposal through public auction. Consequently, an application under Order XXXIX Rules 1&2 C.P.C. for grant of interim stay i estraining the respondent from putting the plot to auction during the pendency of the litigation in the Civil Court, was filed by the petitioners. This application was dismissed by the learned Civil Judge vide order dated 5.5.1991 holding that there is tampering with the record and that the petitioners do not have a prima-facie case. Aggrieved of this order, the petitioners filed first appeal which has been dismissed by the learned District Judge vide order dated 20.6.1992. Learned District Judge has taken note of the fact that the Execution Petition has been filed after an unexplained delay and that there appear to be forgeries in the record which show that in fact the petitioners were allotted plot No. 87-C, but it has subsequently been forged and made to read as plot No. 89-C in various documents including T.O. Therefore, the learned District Judge held that the plaintiffs have failed to prove the fact that the petitioners have a prima facie case. These two orders have been challenged in this Civil Revision. 2. Mr. Muhammad Rafiq Khan Chohan, learned counsel for the petitioners has agreed(?) that the two learned Courts below have misdirected themselves to the real matter in controversy illegally holding that the petitioners do not have a prima facie case. It is contended that admittedly, a T.O. still exists in the name of the petitioners in relation to plot No. 89-C. This T.O. has been re-verified by a full Board meeting of the Settlement Department which included an Officer of the L.D.A. as well and has been found as genuine. There is a decree passed in favour of the petitioners which still holds the field. The question which the Executing Court is now deciding is as to whether the decree to be implemented by the respondent was not after deciding the issues referred to above. Therefore, prima facie the petitioners have a strong case in their favour and at least is arguable. Learned counsel contends that in order to succeed in getting a relief of temporary injunction, the petitioners have not to prove the case beyond doubt. The only requirement is that they should have an important question to raise as held in case of Mian Muhammad Latif vs. Province of West Pakistan through the Deputy Commissioner Khairpur and another (PLD 1970 SC 180) and if they can show that they have important factual and legal question to raise, the first necessary ingredient for grant of interim injunction stands established and this requirement stands established from the documents placed on the record. Learned counsel contends that the two courts below have decided the stay application as if the main case is going to be decided and have discussed the merits of the case and, therefore, have exceeded in exercise of their jurisdiction while deciding stay application. It is contended by the learned counsel that an order which has not been passed by a court in accordance with law is without a lawful authority as held in Utility Stores Corporation of Pakistan Limited vs. Punjab Labour Appellate Tribunal and others (PLJ 1987 SC 581) and, therefore, the orders passed by the two courts below being without jurisdiction are liable to be struck down. Learned counsel has further contended that during the pendency of a dispute with regard to the title between the parties before a court of competent jurisdiction, the respondent cannot be allowed to change the status-quo by putting the plot to auction and to create complications. It is contended that the petitioners have already concluded the evidence and it is the respondent who has to lead evidence. f the respondent concludes evidence on 24.2.1993, the case could be decided within a day or two thereafter, hence, no irreparable loss will be suffered by the espondent if the stay order is issued till the decision of the proceedings before the learned trial court and status quo is maintained whereas in case of refusal to grant stay, the petitioners shall suffer irreparable loss inasmuch as further complications and multiplicity of the proceedings shall occur. Reliance in this 6 behalf has been placed on case of Sardar Wall Muhammad vs. Sardar Muhammad jf Iqbal KJian Mokal & 7 others (PLD 1975 Lahore 492). Learned counsel contends that multiplicity of proceedings and creation of complications has been held by this Court to be a sufficient ground for issuance of a status quo rder against the alienation during the pendency of a dispute of title, hence according to the learned counsel, it is a fit case where the revision petition is liable to be accepted and the udgments of the Courts below are set-aside and the petitioners are granted a stay order as prayed for till the decision of the matter by the learned Executing Court. 3. Malik A.R.Arshud, Advocate, on behalf of the respondent has vehemently opposed this civil revision and has argued that the two learned Courts below having exercised their jurisdiction and discretion against the petitioners, this Court has no jurisdiction to interfere with the matter, inasmuch as, the impugned orders are neither whimsical nor arbitrary. Learned counsel places reliance on case Shahzada Muhammad Umar Beg. vs. Sultan Mahmood Khan and another (PLD 1970 S.C. 139). It is further contended that the petitioners are dishonest litigants as there are patent forgeries on the face of the record and therefore they are not entitled to the grant of discretionary relief from this Court. Reliance has been placed on case of Ghulam Rasul and others, vs. Muhammad Anwar and others (1969 S.C.M.R. 254). Elaborating his argument, learned counsel has taken me through the record which has been appended with this petition. He has pointed out that as is clear from the perusal of digit 9 at pages 45 and 47, 48 and 51, it is apparant that digit 7 has been tampered with and has been made as digit 9. Therefore, in view of this clear tampering with the record, the petitioners are not entitled to the grant of temporary relief. It is further contended that as the petitioners are admittedly not in possession of the plot in question, the suit in the present form is not maintainable and as such the stay cannot be granted to them and that the execution petition is barred by time on the face of it, inasmuch as, it has been filed after an inordinate delay and this fact has been taken note by the learned District Judge while dismissing the appeal filed by the petitioners. It is further contended that LDA is suffering irreparable loss due to non-disposal of commercial plot worth five crores of Rupees, hence, the revision petition is liable to be dismissed. 4. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the records. Admittedly, the transfer order still exists in the name of the petitioners. As per apparent record, number of the plot transferred to the petitioners is 89-C. This fact is also clear from the report of re-verification of T.O. which has been placed as Annexure 'G' on this paper book. From the naked eye, it cannot be said that it is a case of forgery. At any rate, this is the controversy which is pending adjudication before the learned Executing court and the parties are already at issue on this point. The petitioners have produced their evidence, whereas, the respondent is yet to lead evidence. Therefore, the learned Courts below should have avoided to go through these questions so deeply as the same is the subject-matter of the main controversy. I will also refrain from making final observation on this aspect of the matter lest merits of the case may not be prejudiced which are pending adjudication before the lower court. From the record placed on this civil revision, which has been referred to even by the learned counsel for the respondent, I feel that the petitioners have important questions of fact and law to raise which are being determined by the learned Executing Court . Therefore, it cannot be said that the petitioners do not have a prima facie case. The question of forgery, therefore, cannot be deeply gone into at this stage and as such the argument of the learned counsel for the respondent on this score is not of any avail and it cannot be said that the petitioners are proved to be the dishonest litigants and hence the law declared hi case of Ghulam Rasul and others vs. Muhammad Anwar and others (1969 SCMR 254) is not attracted to the facts and circumstances of this case. Having held that the petitioners have a prima facie case, I am of the view that in case the plot is put to auction, the petitioners shall definitely suffer an irreparable loss inasmuch as it will create further complications and will result in multiplicity of the proceedings. Placing reliance on case of Sardar Wali Muhammad vs. Muhammad Iqbal Khan Mokal & 7 others (PLD 1975 Lahore 492), I hold that it is a fit case where the status-quo should be maintained during the pendency of the suit particularly when the case before the learned trial Court is almost at its fag end. The arguments of the learned counsel for the respondent to the effect that the execution petition is barred by tune is also not of any help at this stage to him inasmuch as, this question is also to be determined by the learned Executing Court. This Court should not pre-empt the jurisdiction of the learned trial Court who has to take decision on this question as well. Argument of the learned counsel for the respondent to the effect that the L.DA. will suffer a great loss inasmuch as the plot in question is worth of crores and if not allowed to be auctioned, the projects of great public importance shall suffer, is also of no consequence, inasmuch as, basic question is as to whether the plot in question belongs to the petitioners or the respondent. Therefore, in case the same is allowed to be put to an auction, the petitioners shall definitely suffer an irreparable loss and more inconvenience. Merely because they are not in possession of the plot in question is not a ground for holding that the suit is not maintainable inasmuch as, the relief of possession has also been asked for in the decreed suit. It has been held in case of Ahmad Din vs. Muhammad Shaft and others (PLD 1971 S.C. 762) that a declaratory suit on the basis of a title cannot be dismissed on the ground that the plaintiff is not in possession of the disputed property. Proper course in such a case would be to allow the petitioner to amend the plaint and to ask for possession. Even otherwise, the question of possession in this case is not of much relevancy inasmuch as, it is a vacant plot and possession shall follow the title. Admittedly, construction was raised by the petitioners over the plot in question which has been demolished by the respondent. Therefore, absence of possession is not at all relevant factor to decide application for stay order. The fact remains that a dispute regarding title of the plot in question is pending adjudication before the Civil Court of competent jurisdiction and therefore, it is necessary that status-quo order is maintained during the pendency thereof. In view of the above, I accept this civil revision, set-aside the impugned orders passed by the two learned Courts below and direct that the plot in question shall not be auctioned till the final decision of the proceedings pending before the learned trial Court and status-quo shall be maintained. The petitioners shall also not raise any construction over the plot in question during the interregnum. In view of the fact that allegedly plot in question is worth crores of rupees, it is necessary that the proceedings are decided expeditiously. Therefore, a direction is issued that the learned Civil Judge before whom the execution proceedings are pending shall decide the execution petition on or before 15.3.1993. Information with regard to the decision of the execution proceedings shall immediately be given to the Deputy Registrar(J) of this Court. The parties are directed to bear their own costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 326 PLJ 1993 Lahore 326 Present: MIAN ALLAH NAWAZ, J Syed BASHIR HUSSAIN SHAH and another-Appellants Versus ADMINISTRATOR THAL, BHAKKAR-Respondent FA.O. Nos. 107 and 108 of 1972, dismissed on 2.2.1993 (approved for reporting on 2.3.1993) Civil Procedure Code, 1908 (V of 1908)-- —-O.XLI R.20 read with O.I.R.10 and Section 151-Persons not party to suit-- Impleadment in appeal of-Whether appellate court had power to implead them-Question of~It is clear that newly impleaded respondents were allotted by competent authorities and were in possession of disputed lots~They had acquired valuable legal rights in these lots—They are correctly held by first appellate court to be necessary parties-Held: Conclusion arrived at by first appellate court, is eminently correct, just and congruent with law and appeals are wholly untenable-Appeals dismissed. [Pp.329,331&332]A,B&C AIR 1914 Allahabad 293, AIR 1925 Allahabad 768, 4 Indian Cases 1132, 46 Indian Cases 398, AIR 1941 FC 16 and AIR 1941 Lahore 402 discussed. PLJ1989SC412re/. Mr. Talib H. Rizvi, Advocate for Appellants. M/s Hafiz Tariq Nasim and Zahid Hussain Khan, Advocates for Respondents. Dates of hearing: 30 and 31.1.1993. judgment This judgment will govern FAOs. No. 107 and 108 of 1972 as they are between the same parties and involve the examination of same questions of law and facts. 2. The facts, briefly stated, giving rise to these appeals are; that Syed Bashir Hussain Shah, and Syed Mazhar Hussain Shah were granted lots No. 25 and 28 situated in revenue estate 1/RH Rakh Hetu Tehsil Bhakkar. These lots are fully described in the head note of the plaints and hereinafter shall be referred to as lots No. 25 and 28. Pursuant to the orders of grants, each appellant deposited Rs. 1300/- as earnest money for the grant. On 10.4.1954, the appellants were informed through a communication sent by Thai Authorities to the effect that Tubewell Sinking Scheme had been abandoned by the Government of West Pakistan and, therefore, the orders of grant made in their favour stood at naught. The appellants were further asked to take back the earnest money which they had deposited. In compliance with this communication, the appellants withdrew the earnest money. Thereafter the appellants came to know that the communication addressed to them by Thai Authorities was a fake one; that Tubewell Sinking Scheme had not been abandoned by the Government (then erstwhile West Pakistan). On these facts, the appellants brought two seperate suits in the Court of Civil Judge, Mianwali under Section 42 of the Specific Relief Act (I of 1877) against Administrator Thai Development Authority, alleging therein that the communication of respondent dated 10.4.1954 was based upon a fraudulent representation and, therefore, was of no legal consequence; that the appellants continued to be the grantees of lots No 25 and 28 under Tubewell Sinking Scheme and were entitled to their possession. It was prayed therein that the suits be decreed with requested reliefs. The suits filed by the appellants were contested by Administrator Thai Development Authority who, in written statements contended that lots after resumption from the appellants were allotted to different persons who were effectees of Chashma Barrage Project; that these allottees had obtained possession from the Thai Development Authority; that these allottees were, therefore, necessary parties and suits could not proced in their absence; that the civil Court had no jurisdiction to decide the suit as the question pertaining to grants of lots No. 25 and 28 and their cancellation was exclusively within the domain of Thai Development Authority. On these pleadings, as many as nine issues were settled between the parties which are not necessary to be recapitulated as they are not relevant for the purpose of deciding these appeals. Upon the survey of the evidence so adduced by the parties, the learned original Court held that the communication of Thai Development Authority dated 10.4.1954 was based upon non-existent premises and, therefore, was of no lawful consequence. On this conclusion, the suits filed by the appellants were decreed with requested reliefs subject to the condition that each appellant would pay an amount of Rs. 1350/- as earnest money. This happened vide decisions dated 2.9.1971. 3. Feeling aggrieved with this decision, the respondent preferred two first appeals which came up for hearing before the learned District Judge, Mianwali. During pendency of these appeals, Mst. Maryan, Farid and Fateh Sher lodged an application under Order I Rule 10 read with Section 151 of the Code of Civil Procedure for being impleaded as respondents/defendants in Civil Appeal No. 17 of 1972. It was emphasised therein that lot No. 25 was allotted to them under Scheme for Rehabilitation of evictees of Chashma Scheme; that under the order of allotment the applicants were in possession of lot No. 25, and therefore, had acquired legal vested rights in this lot and were, therefore, necessary parties. Similarly Amir Khan, Ata Muhammad Khan and Sardar Khan submitted application under the same provisions of law for being impleaded as a party hi Civil Appeal No. 15 of 1972 on the premises that lots in dispute in this appeal had been allotted to the applicants by the competent authorities under the Scheme for Rehabilitation of evictees of Chashma Scheme. It was contended therein that the applicants had acquired vested legal rights in the lots in dispute and, therefore, were necessary parties. These applications were vigorously opposed by the appellants. Vide decision dated 5.5.1972, the learned first appellate Court found that the applicants 'were necessary parties and, therefore, allowed their applications. In view of this finding, the learned appellate Court accepted the appeals, remandefl the cases to the learned Administrative Civil Judge, Minawali for denovo trial after affording opportunity of hearing to newly impleaded defendants/respondents under the law. These orders of remand of the learned first appellate Court in first appeal No. 15 and 17 of 1972 are the subject matter of challenge in the appeals in hand. 4. Learned counsel for the appellants impeached the impugned order of allotment on two-fold grounds: - Firstly, that newly impleaded respondents were not parties to the original suits, therefore, the Court had not jurisdiction under Order XLI Rule 20 of the Code of Civil Procedure to implead them as respondents. Strength was sought from Sohan Singh vs. Santa Singh (AIR 1923 Lahore 491). Secondly, that lots No. 25 and 28 were allotted to newly impleaded respondents during the pendency of suits lodged by the appellants. On the basis of this circumstance, it was suggested that the grants of the lots No. 25 and 28 to newly impleaded respondents were hit by the principle of Us pendens embodied in Section 52 of the Transfer of Property Act (IV of 1882). Reliance was placed on Pir Abdullah Shah vs. Hamayun (PLD 1957 Lahore 1054). and Malik Muhammad Jqbal vs. Ghulam Muhammad and another (PLJ 1990 Lahore 106). (1) On the contrary, learned counsel for the respondent vigorously defended the impugned orders by saying that under Section 107 of the Code of Civil Procedure, the appellate Court possessed the same powers which were exercisable by the trial Court. On these premises, it was argued that the appellate Court had a power under Section 151 of the Code of Civil Procedure (herein-after called as the Code) to implead the newly impleaded respondents who prima facie were necessary parties. Reliance was placed on Muhammad Nisab Ktian vs. Azad Government ofAJ.K (PLJ 1987 AJK 49). Continuing, the learned counsel for the espondent submitted that the principle of Us pendens was not attracted to the facts of the appeals in hand. (2) From the above narration, the first and fore-most question arising for consideration is "whether the first appellate Court had powers under the provisions of the Code to implead the newly impleaded respondents who were admittedly not party to the suit". This question had never been free from difficulty. In pre-partition era, there was divergence of judicial opinions on this point. Pachkauri vs. Ram -Khelawan (AIR 1914 Allahabad 293), Firm Shiam Lai vs. Dhanpat Rai (AIR 1925 Allahabad 768), Monjiram vs. Maneklal (AIR 1929 (?) 353) are the authorities in support of rule that the appellate Court in presence of provisions of Rule 20 of Order XLI of the Code, has no power to implead a person as a party in appeal who was not party to the -suit before the primary Court. In Zamindar Garu vs. Govindarajulu Venkata Sllbbarayadu (4 Indian Cases 1132), the Division Bench of Madras High Court took different view that the appellate Court had inherent power under Section 151 of the Code to implead a person party to the appeal who was not arrayed as a defendant in the suit before the original Court. The same view was taken by Division Bench of Patna High Court hi Sirimati Hemanigini Debt vs. Haridas Benerjee (46 Indian Cases 398). In United Province vs. Atiqa Bcmm (AIR 1941 F.C. 16), after examining Order XLI Rule 20, Order I Rule 10 and Section 151 of the Code Sulaiman, J. in a seperate opinion expressed that language of Rule 20 of Order XLI of the Code "does not show that it is exclusive or exhaustive as to deprive appellate Court of inherent power which it may possess and can exercise in special circumstances, and it has been saved by Section 151 of the Code". These observations were made while considering Order I Rule 10(2) of the Code which empowers the Court of original jurisdiction to order the name of any person who might have joined or whose presence before the Court was necessary in order to enable the Court to effectually and completely decide and settle all the questions raised in suit". In this case the U.P. Government was impleaded as a party in the appeal which was not party in the original suit. The view taken in United Provinces' case (AIR 1941 FC 16), supra was followed by Division Bench of Lahore High Court in Shanti Lai and others vs. Firm Hira Lai Sheo Narain through Shiv Koran Das and others (AIR 1941 Lahore 402). 7. The aforesaid question came up for consideration before the Supreme Court in somewhat different circumstances, in Said Muhammad and others vs. M. Sardar and others (PLJ 1989 S.C.412). In this case M. Sardar and others had instituted a suit in the Court of Civil Judge, Okara to seek a declaration that they and Abdul Ghafoor one of the defendants were owners in possession of the suit land under an exchange. During the pendency of the suit, -the Court referred the dispute to arbitration of two real brothers Mian Abdul Haq and Mian Bashir Ahmad and appointed Mian Abdul Wahab as an umpire in case of difference of opinion. The arbitrators and umpire gave a unanimous award in the term that respondents will remain exclusive owners of the land in Daya Ram Dauluwal village jointly with Abdul Ghafoor and to compensate the appellants they would give nine acres of land to the appellants in the area of village Dauluwal. The appellants filed objections to the award which were rejected and award was made the rule of Court by decision dated 6.3.1968. The appellant filed an appeal against the above decision, but without impleading Abdul Ghafoor as a party in the appeal. On 20.2.1969 an application was filed under Order XLI Rule 20 of the Code for impleadment of Abdul Ghafoor on the ground that name of Abdul Ghafoor was left by inadvertant error of typist. An application for condonation of delay under Section 5 of the Limitation Act was also lodged. The first appellate Court however refused to implead Abdul Ghafoor as one of the respondents holding that appeal was improperly constituted; that the application has been filed after the period of limitation has expired against the said Abdul Ghafoor. In the second appeal the High Court upheld the view taken by the first appellate Court. In this factual background Saeed Ahmad and others filed appeal which was accepted by the Supreme Court vide decision dated 18.12.1988. In this case the question for consideration was "whether the appellate Court in terms pf Order XLI Rule 20 of the Code was competent to implead a necessary party against whom the impugned decree has become final on account of the expiry of limitation. The rule laid down in precedents referred to in preceding paragraph was approved. It was held that the provisions of Order XLI Rule 20 of the Code were neither exhaustive nor exclusive. The appellate Court by virtue of powers under Section 107 of the Code was possessed of the same powers which were conferred upon the trial Court and was fully competent to implead a party in appeal against whom the time prescribed under Limitation Act has expired. It was further held that statement of law in Labhuram's case was no longer correct view. 8. From the above discussion, the ratio deducible is; (i) That Order XLI Rule 20 of the Code is neither compreheneive nor exclusive. This does not denude appellate Court from its inherent powers under Section 151 of the Code to implead a party who is not a party to the original suit if it is shown that he is a necessary party and no decision can be rendered without such party. (ii) That the provisions of Rule 20 of Order XLI, Rule 10 of Order I and Section 151 of the Code are the part of procedural law and so are to be liberally construed in order to advance the calls of doing substantial justice instead of killing the causes on mere fetish of technicalities. (iii) That the appellate Court, apart from Order XLI Rule 20 of the Code has powers under Section 151 of the Code to implead any party as respondent who has been left out by the appellant due to inadvertant error, even after the expiry of period of limitation prescribed for filing appeal subject to the conseqence of Limitation Act. 9. Applying these tests to the circumstanes of this case, it is crystal clear that the newly impleaded respondents were allotted lots No. 25 and 28 by the competent Authorities; that they had been in possession of the lots in dispute; that these respondents had acquired valuable legal rights in these lots and, therefore, were correctly held by the first appellate Court to be necessary parties in suits filed by the appellants. The conclusion arrived at by the first appellate Court is eminently correct, just and congruent with law. I have, therefore, no hesitation to hold that the decisions of the learned first appellate Court are not exceptionable. 10. There is another remarkable feature of the case. Vide impugned decisions dated 5.5.1972 Mst. Maryan, Farid and Fateh Sher in civil appeal No. 17 of 1972 and Amir Khan, Ata Muhammad Khan and Sardar Khan in civil appeal No. 15 of 1972, were impleaded as parties. Inspite of this order, the appeals were filed without impleading them. It is a settled principle of law that a lis brought before the Court without impleading necessary party is improperly constituted and can be strainght-away dismissed on this ground alone. It may be noted at this stage (that) Hafiz Tariq Nasim, Advocate, appeared on behalf of newly impleaded respondents and raised preliminary objection regarding the maintainability of the appeal on the ground that these appeals had been peferred without the newly impleaded respondents, therefore, were incompetent. There is force in this contention. 5. As regards the question of Us pendens, this plea cannot be taken into consideration in these appeals. This being plea of fact, shall be available before the original Court. The contention is found to be devoid of force and is, accordingly, repelled. 6. For the reasons stated above these appeals are found to be wholly untenable and are, accordingly, hereby dismissed. The appellants shall bear the costs of proceedings throughout. Since these appeals had been pending adjudication before this Court for a petty long tune, I therefore, find it proper to direct the original Court to decide the suits filed by the appellants after affording opportuniy of hearing to the parties in accordance with law within a period of one year commencing from the receipt of the order of this Court. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 Lahore 332 PLJ 1993 Lahore 332 Present: GUL ZARIN KlANI, J MUHAMMAD GHANI-Appellant versus ALI AHMAD and 3 others-Respondents R.S.A. No. 72 of 1970, accepted on 24.1.1993 (approved for reporting on 14.2.1993) Partial Pre-emption-- —Pre-emption-Suit for—Omission to include one Khasra number—Whether principle of partial pre-emption was attracted—Question of—On careful reading of plaint and analysis of evidence, there is no doubt that plaintiff intended and did pre-empt sale of entire land conveyed in registered sale deed-While drafting plaint, Advocate omitted to mention one khasra number, but added a note at end of plaint for omprehending entire transaction of sale in pre-emption suit—It appeared to be a clear inadvertant omission of pen which did not materially impinge upon merits of cause—Held: A fair view of plaint led to on irresistible conclusion that it covered entire land conveyed hi sale deed and by no stretch of imagination, it could be held to be a case of partial pre-emption-Appeal accepted. [Pp.333&334]A,B&C Ch. Muhammad Asif Ranjha, .Advocate for Appellant. Mr. Taki Ahmad Khan, Advocate for Respondent No. 1. Date of hearing: 24.1.1993. judgment Solitary point surviving for decision in the second appeal was, whether the plaintiff sued for partial preemption of the sale and was rightly non-suited in appeal by learned District Judge, Sialkot, on 3.12.1969, and, if it was found otherwise that the plaintiff intendend to sue for pre-emption in respect of the whole of the land conveyed in the registered sale-deed, judgment given in appeal deserved to be quashed and that of the trial Court entitled to be restored. Facts lie within a short compass. By a sale-deed executed on 19.3.1966, and, registered on 22.3.1966, Abdul Ghani and his two sisters Mst. Roshan Bibi and Mst. Resham Bibi sold five kanals of agricultural land out of Khata No. 26, situate at Mauza Chak Kala of Tehsil and District Sialkot for a consideration of Rs. 2,000/- to Ali Ahmad. Muhammad Ghani as plaintiff claimed pre-emption in respect of the above sale. He asserted his superior right of pre-emption on the grounds of being a collateral to the vendors, .a co-owner in the joint Khata and owner of the estate. Pre-emption suit was instituted on 18.3.1967. Vendee of the land resisted the suit. He contested the plaintiffs right to pre-empt the sale, amongst other grounds, on account of partial pre-emption. Contentious pleadings gave rise to as many as seven issues including that of relief. Issue No. 3 covered the point regarding plea of partial pre-emption. It was resolved in favour of the plaintiff by the trial- Court but was found against him, in the lower appellate Court, So, the question would be, whether the pre-emption suit embraced the whole transaction of sale or a part of it to attract the principle of partial pre­ emption. Upon careful reading of the plaint and considered analysis of the evidence, I was left in no doubt that the plaintiff intended and did pre-empt the sale of the entire land conveyed in the registered sale-deed dated 22.3.1966 marked Ext. D.I. It $howed sale of five kanals of land from Khasra Nos. 52, 154, 155, 160, 161, 162, 352/163, 353/163, 164, 165 comprised in khataunis Nos. 48 to 54 of khewat No. 26, recorded in the jamabandi for the year 1963-64, and situated at Mauza Chak Kala of Tehsil and District Sialkot. In the plaint of the pre­ emption suit, plaintiff gave full description of the land sold through the registered sale-deed. The area described was five kanals, number of khataunis and khata were correctly noted in para 1 of the plaint, but khasra No. 52 came to be omitted from it, while numbers of other khasras were correctly given in the aforesaid para of the plaint. Reference to the date of sale-deed and consideration for the sale were also correctly noticed. At the end of the plaint, a note was appended that the plaintiff claimed pre-emption in respect of the entire land sold through the registered sale deed. The vendee admitted sale of five kanals of land in his favour, through the registered sale-deed, but made a mountain out of a mole-hill of the omission of khasra No. 52 from the plaint and described it a case of partial pre­ emption and took an exception ^to maintainability of the pre-emption suit on this score. Learned District Judge appeared to agree with this hyperbolical technical view of the record and found it to be a case of partial pre-emption by the plaintiff. Unfortunately for the contesting respondent, I could not subscribe to his view and uphold it upon any rational view of the record. Plaintiff intended to claim pre­ emption in respect of the entire transaction evidenced by Ext.D.l and expressed his unequivocal mind in the plaint about it. However, while drafting the plaint, the Advocate omitted to mention one khasra number, but added a note at the end of the plaint for comprehending entire transaction of sale in the pre-emption suit. It appeared to be a clear inadvertant omission of pen which did not materially impinge upon the merits of the cause. At the most, it was an error respecting description of the land sold and did not tantamount to leaving out a portion of the land or exclude it from the ambit of the claim for pre-emption. In giving effect to the plea of partial pre-emption, learned District Judge made fetish of a minor, technicality regarding description of the property sold. In my view, nothing material turned on -the omission. The Court could have easily rectified the error without infringing any principle of law favouring the vendee. Inherent powers to correct errors respecting description of the property were readily available for exercise at any time to prevent miscarriage of justice. A fair view of the plaint led to an irresistible conclusion that it covered the entire land conveyed in the registered sale-deed and by no stretch of imagination, it could be held to be a case of partial pre-emption. View taken in the lower appellate Court was clearly incorrect. As far the superior right of pre-emption possessed by the plaintiff, Ext.P.1 left no doubt that he was a co-owner in the joint khata, out of which the land-in-dispute was sold to the vendee. Learned counsel for the respondent made a vain attempt for refuting it, though the point was not agitated in first appeal by the vendee. Purchase price had since been deposited in time fixed in the decree of the trial Court. In view of aforesaid, appeal is allowed with costs. Impugned judgment and decree of learned District Judge dated 3.12.1969 are set aside and those of the trial Court restored to take effect in accordance with law. Original records be returned. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 Lahore 334 PLJ 1993 Lahore 334 Present: malik muhammad qayyumj Raja MAROOF AHMED-Appellant versus QAMAR ZAMAN and another—Respondents FA.O: Nos 110 and 111 of 1990, accepted on 18.1.1993 Personal need— —Tenant-Ejectment of~Refusal of—Challenge to-Personal bonafide requirement-Ground of—It is established on record that appellant has his office in flats in upper portion of shops in dispute, and that flats being residential in nature, cannot be occupied for commercial purposes-­ Contention that flats having been used for commercial purposes, have assumed commercial/non-residential character, cannot be accepted—It cannot be denied that occupation of ground floor for commercial purposes is more beneficial and useful than accommodation on first floor~It is well settled that landlord is best judge of suitability of his property and his choice cannot be substituted by Rent Controller-Held: Nothing substantial has been brought on record to show that ejectment applications have not been filed bonafide- Appeal accepted. [Pp.336&337]A,B,C,D,E,F&G PLJ 1983 Lahore 298, SCMR 590; 1990 SCMR 1070 and NLR 1991 Civil 669 rel. Mr. Iqbal Mahmood Awan, Advocate for Appellant. Ch. All Muhammad, Advocate for Respondents. Date of hearing: 18.1.1993. judgment This judgment shall dispose of FAO Nos. 110 and 111 of 1990. 11. Respondents in these two appeals are tenants in respect of two shops situated in Main Market Commercial Area, Lahore Cantonment Co-operative Housing Society, Lahore Cantt. The appellant field two separate applications against them for their eviction from the shops in their occupation on account of default in payment of rent and personal need. These applications were dismissed by the Rent Controller on 9th June, 1990. 12. Aggrieved by that order, the appellant has filed these two first appeals under Section 24 of the Cantonment Rent Restriction Ordinance, 1985. 13. Learned counsel for the appellant has, in support of these appeals, challenged the findings of the Rent Controller only on the issue relating to personal need. It was submitted that the appellant is contractor and wishes to establish his office in the two shops and due to lack of proper accommodation, he has been forced to open his office on the first floor of the same property in a residential portion. 14. Earlier, when these appeals were heard on 3rd February, 1992, this Court felt the necessity of having an inquiry held into the question as to whether the premises where the landlord/appellant was running his office could be used for commercial purposes. Accordingly, the Rent Controller was directed to do the needful. In compliance with that order, the Rent Controller recorded further evidence and has submitted his report accordingly wherein it was opined that the premises presently being used by the appellant as office are residential in nature and cannot be used for commercial purposes. 15. Learned counsel for the appellant has argued that the Rent Controller had acted arbitrarily while rejecting the applications field by the petitioner/appellant mainly on the ground that the petitioner had not mentioned in his ejectment application that he was in occupation of other property where he was running his office. In support of this contention, reliance has been placed on Haji Mohibullah & Co. and others v& Khawaja Bahauddin (1990 SCMR 1070) and Muhammad Boota vs. Haji Ghulam Mustafa etc. (NLR 1991 "Civil 669). It was explained by the learned counsel that when ejectment petition was filed, the office of the petitioner was not located in the upper portion of the shops to which he shifted subsequently and, therefore, the fact that he was occupying the upper portion of building, could not have been mentioned in the ejectment petition. It was also contended that the premises, in which the petitioner has opened his office, being residential in nature, cannot be used for non-residential purpose and occupation of such A property cannot be the basis for dismissal of the ejectment petition. Raja Qurban Khan vs. MM Sharif and another (1980 SCMR 590) and Rana Khalil ur Rehman vs. Additional District Judge, Lahore. (PLJ 1983 Lahore, 298) have also been cited by the petitioner's learned counsel. 2. Arguments' of the learned counsel for the respondent in FAO No. 110/1990 have been heard. Learned counsel for the respondent in other connected FAO No. 111/90 has not appeared despite repeated calls. It is now 130 p.m. He cannot be awaited any further. 3. The facts which stand established on the record and about which there is no dispute, are that the appellant is working as A-Class Contractor and is presently occupying flats situate at the upper portion of the building in which the shops in dispute are located for the purpose of his office. As has been found by the Rent Controller, the flats are residential in nature and cannot be occupied for commercial purposes. Consequently, the occupation of such property cannot be bar hi the way of the landlord in having non-residential premises vacated for (his) own need. 4. Learned counsel for the respondent has however contended that notwithstanding that the flats were built for residential purposes, but as the same have been used for commercial purposes, they assumed commercial/nonresidential character. This contention of the learned counsel cannot be accepted in view of the law laid down in Raja Qurban Khan vs. Begum M.M.Sharif and another (1980 SCMR 590) and Rana Khalil ur Rehman vs. Additional District Judge, Lahore (PLJ 1983 Lahore. 298) which is to the effect that notwithstanding its user for non-residential purpose, the property built for residential purposes remains residential in nature. 10. Be that as it may, the appellant has brought on record sufficient (material) to show that his business is being adversely affected on account of his office being situated on the upper portion rather than the ground-floor. It cannot be denied that the occupation of ground-floor for commercial purposes is more beneficial and useful than the accommodation on the first floor. 11. Even otherwise, it is well-settled that the landlord is the best judge of the suitability of the property where he would like to carry on his business and his choice, if otherwise reasonable, cannot be substituted by the Rent Controller nor his own opinion. 12. The main emphasis of the learned counsel for the respondent is that the need of the appellant is not bonafide. He has pointed out that the case set up by the appellant in his ejectment petition was that he was not occupying any premises for his office and the fact that he already maintained an office in the upper portion of this property was purposely concealed and withheld. As ruled by the Supreme Court in Haji Mohibullah & Co. and others vs. KJiawaja Bahauddin (1990 SCMR 1070), it is not obligatory to disclose that he is in occupation of other premises not suitable for his need in the ejectment petition. To the same effect is the judgment in Muhammad Boota vs. Haji Ghulam Mustafa, etc. (NLR 1991 Civil 669). In the present case, the landlord, while appearing as witness, has categorically stated that due to lack of accommodation, he was forced to open his office during the pendency of ejectment petition in residential flats. This statement of the landlord is also corroborated by other witnesses examined by him viz. Raja Ghazanfar All (PW1), Muhammad Qasim (PW2) and Muhammad Ibrahim (PW3). 13. Nothing substantial has been brought on the record to show that application has not been filed bonafide. PW1 merely stated that the appellant is running his business in the upper portion of the shop. PW2 admitted that he was close friend of the respondent. Although he deposed that the ejectment petition has been filed with a view to have the rent enhanced, but no details in this behalf were furnished. It is also to be noted that there is no allegation in the reply to the ejectment petition filed by the respondent that the appellant had ever asked him to enhance the rent or that the ejectment petition has been filed on account of his refusal to agree to the increase in rent. Furthermore, there is sufficient protection available to tenant/respondent in from of Section 17(9) of the Rent Restriction Ordinance, 1963(?) which provides thatin case of failure of landlord to occupy the premises, the possession has to be restored to the tenant. For the reasons aforesaid, the impugned order of the Rent Controller is set aside and ejectment petition field by the appellant against the respondent is accepted with no other as to costs. The respondents are allowed four month's time to vacate the shops. (MBC) (Approved for reporting) Appeals accepted.

PLJ 1993 Lahore 337 PLJ 1993 Lahore 337 Present: MALIK MUHAMMAD QAYYUM, J MUHAMMAD RIAZ CHUGHTAI-Appellant versus Mst. IRSHAD BEGUM-Respondent SA.O. No. 26 of 1990, accepted on 11.1.1993 Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)- —S. 13--Tenant~Ejectment of~Order of--Challenge to—Whether tenant forfeits his tenancy by denial of title of his landlord-Question of~It cannot be laid down as a principle of universal applicability that in all cases where denial of tenancy is found to be false, an order of ejectment must necessarily follow without holding any further proceedings-It depends on circumstances of each case-Held: It was necessary for Rent Controller to decide as to whether rent of disputed period had been paid/tendered by Travel Kings (Private) Limited and if so, with what effect—Held further: An order of ejectment without holding an enquiry into allegations of default and personal need, was wholly uncalled for-Appeal accepted. [Pp.340&341]A,B&C PLJ 1984 SC 449 and PLJ 1985 SC 1 rel. Syed JamshedAli Shah, Advocate for Appellant. Mr. Karamat Nazir Bhindan, Advocate for Respondent. Date of hearing: 11.1.1993. JUDGMENT This is a second appeal under Section 15(6) of the Punjab Urban Rent Restriction Ordinance, 1959, from the order of the Rent Controller, Lahore, dated 6.10.1988, which was affirmed in appeal by the learned Additional District Judge, Lahore, on 16.7.1990. 7. The appeal arises out of an application under Section 13 of the Punjab Urban Rent Restriction Ordinance 1959, filed by Mst. Irshad Begum, respondent herein, against the appellant, alleging that he was in possession of shop No. 9, Clifton Hotel Building, Chowk Australia, Mcloed Road, Lahore, as a tenant under her and was liable to be ejected on the grounds of default in payment of rent from January, 1987 >to March, 1987, and also for the reason that she required the shop for her own use and occupation. 8. The application was resisted by the respondent on the plea that the tenant in occupation of the premises was an incorporated company by the name of Travel Kings (Private) Limited and there was no relationship of landlord and tenant between the ..parties. It was objected that the ejectment petition was not maintainable in the absence of a necessary party. On merits, the allegations of default and personal need were denied. It was asserted that Travel Kings (Private) Limited had been regularly paying the rent and was not a defaulter. The averment that the shqp being required by the respondent landlady was also controverted. 9. On tHe pleadings of the parties, the Rent Controller framed the following issues: 2. Whether there exists relationship of landlady and tenant between the parties. 3. Relief. The evidence adduced by respondent No. 1 in support of her case comprises of the statement of Munir Khan (AW1) and Meer Sahib Khan, her general attorney, as AW2. A copy of the rent deed executed by the appellant in her favour was produced as ExAl, while that of the power of attorney as ExA2. On the other hand, the appellant produced Javed Iqbal Chughtai (RW1) and Abdul Hameed, attorney of the respondent as RW2. In addition to this oral evidence, receipts Ex.Rl to R12 evidencing the payment of rent were also led in evidence. It may also be noted that during cross-examination of AW2, the appellant had produced two documents, namely, notices served by the respondent under Section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959, for the enhancement of rent as ExA3 and A4. 1. The Rent Controller, vide his order dated 6.10.1988, held that the appellant was a tenant in respect of the premises under the respondent. This finding was primarily based upon the rent note ExAl. The Rent Controller, after answering the issue against the appellant, proceeded to direct his eviction from the shop in question without holding any further inquiry and he was of the view that the denial of tenancy being contumacious, it was not necessary to frame the issues on merits. 2. The appellant challenged that order by filing an appeal before the District Court, which appeal was dismissed by an Additional District Judge, Lahore, on 6.3.1989. Aggrieved by that order, the appellant filed a constitutional petition (W.P. No. 1859 of 1989), which was accepted by this Court on the ground that the appeal filed by the appellant had not been decided in accordance with law. The appeal was, therefore, remanded to the Additional District Judge for decision afresh. By his order dated 16.7.1990, the learned Additional District Judge once again dismissed the appeal filed by the appellant and affirmed the order of the Rent Controller dated 6.10.1988. 3. Syed Jamshed Ali, Advocate, learned counsel for the appellant has raised the following contentions: 5. that the shop in question was rented but to Messers Travel Kings (Private) Limited and not to the appellant, who was the Managing Director of the said company. It was pointed out by learned counsel for the appellant that some important evidence including the admission of AW1 has been ignored from consideration by the Courts below; 6. that even if it be assumed that tenancy was originally between the appellant and the respondent, yet there was a novation of the agreement and a fresh tenancy was created between the respondent and Travel Kings (Private) Limited. Reference was made to the notice dated 14th September, 1986 by the respondent on Travel Kings (Private) Limited and the receipts Ex. R7 to Ex.R12; and (3) that in the circumstances of the case, the Courts below were not justified in directing the eviction of the appellant after the decision of the preliminary issue without holding any further inquiry into the allegations regarding default and personal need. (1) Mr. Karamat Nazir Bhindari, Advocate, learned counsel for the respondents, has defended the impugned orders. (2) From perusal of the evidence on the record, it appears that the shop in question was originally rented out by the respondent to the appellant, which fact was evidenced by rent note ExAl dated 2.4.1985. The signatures of the appellant on the said document have not been disputed by him. The explanation given hi this behalf that he had signed the blank paper cannot be accepted in the absence of any cogent evidence, which is not forthcoming. Subsequently, however, the company as also the appellant were treated as same entity by the parties. Although the shop was taken on rent by the appellant, but the premises were being used by the company which was paying rent to the respondent, who received the same, as is evident from the receipts Ex.R7 to R12. (3) Be that as it may, any further discussion on this question appears to be wholly unnecessary, as the impugned orders are not sustainable for the reason that in the circumstances of the case, an order of ejectment could not have been passed against the appellant without holding any further inquiry into the allegations regarding default in payment of rent and personal need. (4) Learned counsel for the appellant has relied upon the authorities of the Supreme Court of Pakistan mMakhan Bano v. Haji Abdul Ghani (PLJ 1984 S.C. 449) and Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLJ 1985 S.C. 1) to contend that the principle that the tenant forfeits his tenancy by the denial of title of his landlord is not applicable to proceedings under the Rent Restriction Laws. (5) This argument is unexceptionable in view of the pronouncement of the Supreme Court in fhe above cited cases. It cannot be laid down as a principle of universal applicability that in all cases where denial of tenancy is found to be false, an order of ejectment must necessarily follow without holding any further proceedings. The question as to whether after the decision of the preliminary issue as to the existence of relationship of landlord and tenant between the parites, further inquiry into the grounds on which ejectment of the tenant is sought is called for depends upon the facts of each case. If in the written statement filed by the tenant, he not only disputes the title of the landlord to the property but also denies his entitlement to receive the rent without pleading the payment of rent, holding of further inquiry would be an exercise in futility. The present case, however, stands on a different footing. In the written statement filed by the respondent, it was specifically asserted that Messers Travel Kings (Private) Limited was not a defaulter and had paid rent to the landlady. It stands established on the record that previously, the landlady has been accepting the rent from Travel Kings (Private) Limited. It was, therefore, necessary for the Rent Controller to decide as to whether the rent of the disputed period had been paid/tendered by Travel Kings (Private) Limited and if so, with what effect. An order of ejectment without holding an inquiry into the allegations of default and personal need was wholly uncalled for. As a result of what has been stated above, the appeal is accepted, the impugned orders are set aside and the case is remanded to the Rent Controller for decision afresh after framing the issues on merits and allowing the parties to produce evidence. As the ejectment petition was filed about six years ago, it is directed that the same shall be decided by the Rent Controller before 31st March, 1993, if necessary by holding day to day proceedings. The parties shall appear before the District Judge, Lahore, on 25.1.1993, who shall entrust the ejectment petition to a Rent Controller of competent jurisdiction. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 Lahore 341 PLJ 1993 Lahore 341 Present: GUL ZARIN KlANl, J Qari MUHAMMAD ASLAM-Petitioner versus ADDITIONAL DISTRICT JUDGE, SARGODHA aai another-Respondents Writ Petition No. 283 of 1993, dismissed on 12.1.1993 Deficiency in court-fee-- —Suit for maintenance-Decree passed in-Appeal against-Deficiency in courtfee on appeal-Non-compliance of direction—Effect of~Respondent No. 2 claimed past as 'well as future maintenance-Primary Court gave her maintenance at rate of Rs. 300/- P.M. with effect from her date of birth till her marriage—Petitioner appealed without paying court-fee on it—He was obliged to pay ad-valorem court-fee-Held: There is no justification for interference in extra-ordinary jurisdiction of High Court-Petition dismissed: [P.343JA AIR 1961 Punjab 11 ret. PLD 1983 Lahore 383 and PLJ 1991 Lahore 141 not applicable. Malik Muhammad Ramzan Raza Khokhar, Advocate for Petitioner. Date of hearing: 12.1.1993. order Petition under Article 199 of the Constitution of Pakistan was against an order of learned Additional District Judge, Sargodha , passed on 27.9.1992 by which he dismissed the appeal on account of failing to pay required amount of court-fee on it, in time, fixed by his Court. Facts of the case and point of law respecting them were both simple and could be forthwith attended to. Mst. Asia Bibi was married to the petitioner, on 21.10.1988. On 11.10.1989, a daughter was bora to them. She was given the name of Asmat Bibi. Her birth proved a little unfortunate for her and her mother. Petitioner developed differences with his wife. Consequently, she left with the child, for her parents' home and brought a suit for maintenance for herself and the child against the petitioner in a Family Court at Sardogha. Separate maintenance was claimed at the rate of Rs. 500/- per month each for the past thirteen months in respect of Mst. Asia Bibi and nine months for the child and also future maintenance at the same rate. Maintenance suit was instituted on 9.7.1990. Petitioner contested his liability. On 18.3.1992, Family Court gave maintenance to the child at the rate of Rs. 300/- per month from the date of her birth on 11.10.1989, till her marriage and as regards Mst. Asia Bibi, her suit was dismissed. Learned counsel says that Mst. Asia Bibi was divorced in a Court decree. The decree has not been put on file. Therefore, date of divorce is not ascertainable from the existing record. Be that as it may, petitioner preferred an appeal from the decree of the Family Court to District Judge Sargodha. His appeal was entrusted to learned Additional District Judge, who on 28.7.1992 called upon him to pay deficit court-fee, in the sum of Rs. 3350/- on memonrandum of appeal till 20.9.1992. Learned Judge referred to a case reported in 1987 SCMR 1161 for supporting his action. Petitioner could not meet his liability by the due date. Therefore, he petitioned for a further time. Learned Judge gave him time till 27.9.1992. Neither, the application for extension of time for payment of deficit court-fee, nor the order made on it were put in. However, even by the extended time, petitioner did not deposit the required court-fee and submitted another application for further extending the time. It was stated that his area suffered inundation, and, therefore, he required time to collect funds for meeting the fiscal liability. Learned Judge did not agree with him and refused to further extend the time for payment of deficit court-fee and dismissed the appeal on its score. Against his decision, a petition in extraordinary jurisdiction has been filed in this Court. Learned counsel referred to cases reported in Abdul Ghafoor vs. Muhammad Rafiq and others PLD 1983 Lahore 383, Muhammad Khalil vs. Mst. Zahida Perveen and others PLJ 1991 Lahore 141. Former decision was not in point and the latter did not apply to the facts of the case before me. Respondent No. 2 claimed past as well as future maintenance. The primary Court gave her the maintenance at the rate of Rs. 300/- per month with effect from her date of birth i.e. 11.10.1989 till her marriage. Petitioner appealed without paying any court-fee on it. In terms of Section 7, clauses (i), (ii) read with Article 1, Schedule I of the Court Fees Act 1870, the petitioner was obliged to pay ad-valorem court-fee on the value of subject-matter-in-dispute in appeal, in the Court below. He was required to assess and pay court-fee on past as well as future maintenance in accordance with above noted charging provision. Thus computed, the impugned order placing reliance on the judgment of the Supreme Court did not suffer from any infirmity. Another decision from the post-partition Indian Jurisdiction of East Punjab High Court reported in AIR 1961 Punjab 11 was much helpful. With respect, it enunciated the legal proposition correctly and I agree with it. Faced with the above, learned counsel had not much to urge and fell back on the request for further extension of time for payment of deficit court-fee in the Court below. I thought it inequitable and unjust also to entertain the prayer at this stage for harming the interests of a neglected minor child by her father, when she needed his care most. Even otherwise, learned Judge below had already treated the petitioner indulgently and there was no occasion to further pamper him. With the afore-noted statement of facts and law, there was no justification for interference by this Court. Writ petition is, therefore, dismissed in litnine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 343 PLJ 1993 Lahore 343 Present: GUL ZARIN KIANI, J AURANGZEB-Petitioner versus MASSAN and 13 others-Respondents Writ Petition No. 1566 of 1993, dismissed on 14.2.1993. Civil Procedure Code, 1908 (V of 1908)- —S. 12(2)-Pre-emption suit-Decree passed in after target date-Application under Section 12(2) of C.P.C.~Dismissal of~On revision, application accepted and decree set aside-Challenge to~Contention that since pre-emption decree was executed and vendees withdrew decretal amount, application for rescission of decree could not lie-It is not denied that no decree could be passed in pre­ emption suit after 31.7.1986 on ground of relationship with vendor-Held: Pre­ emption decree after 31.7.1986 was a nullity and passed without jurisdiction, therefore, court could competently recall it under Section 12(2) to prevent misapplication of law as well as miscarriage of justice-Petition dismissed. [P.345]A PLJ 1986 SC 576 ref. Mr. Munir Ahmad Bhatti, Advocate for Petitioner. Date of hearing: 14.2.1993. order By a deed of sale registered on 9.9.1981, respondents Nos. 1 to 10 purchased some land at Mauza Banoray in Tehsil Chiniot for a consideration of Rs. 2,75,000/- from respondents Nos. 11 to 13. The sale was subjected to two separate pre-emption suits by Aurangzeb son of Ahmad Khan, and, Muhammad Khan. Both claimed superior right of pre-emption on the grounds of being collaterals of the vendors and co-owners with them in the joint land. Their suits were consolidatd for a joint trial. On 20.10.1987, the trial Court at Chiniot decreed both the pre-emption suits in favour of respective pre-emptors and divided the pre­ emptive land equally between them, subject to each paying or depositing a sum of Rs. 1,35,500/- till 30.11.1987. In default of deposit by any of the pre-emptors by the due date, the other was required to pay or deposit his share of pre-emption money, till 30.12.1987 to earn a decree for whole of the land sold. Petitioner- Aurangzeb deposited his share of pre-emption money and is stated to have executed the pre-emption decree. Pre-emption suit was decreed in his favour on proof of sole ground of collateralship with the vendors. Plea of co-ownership was not established. On 1.2.1989, respondents Nos. 1 to 12 presented a petition under Section 12(2) of Civil P.C. to the trial Court for setting aside of the pre-emption decree on the ground that it could not have been passed against them on or after 31.7.1986; the target date fixed in the case of Malik Said Kama! Shah reported as PLJ 1986 Supreme Court 576. It may be noted that the vendees of the land-in-dispute were ex-parte at the trial of the pre-emption suit. Petitioner resisted the application. It was submitted that the respondents who were petitioners before the trial Court had no locus standi to file the application; they were estopped by their words and conduct to institute the application; that since the respondents had withdrawn the pre-emption money from the Court, the application for setting aside of the pre­ emption decree was not maintainable. On 5.6.1989, the trial Court dismissed the application. His sum up is contained in para-3 of his order. It reads:- "Arguments heard. Record examined. While passing decree dated 20.10.1987, neither any fraud nor any mis-representation was made. Decree dated 20.10.1987 was not challenged in appeal before any Appellate Court. Sale-price deposited by the respondents/pre-emptors was withdrawn by the vendees. Decree dated 20.10.1987 has been executed and the pre-emptors have taken possession of the suit land. I ee no force in the application and the same is dismissed". Respondents preferred a revision from this decision of the trial Court before the District Court at Chiniot. Revision was placed on the cause-list of learned Additional District Judge for its hearing. By order dated 13.9.1992, revision was allowed and the impugned judgment and decree of the trial Court passed in pre­ emption suit on 20.10.1987 was sete aside. This judgment of the lower Court was sought to be set aside in judicial review, at the instance of Aurangzeb petitioner. It was urged that since the pre-emption decree was executed and the vendees had withdrawn the decretal money from the trial Court, application under Section 12(2) of Civil P.C. for rescission of the pre-emption decree could not successfully lie. I am unable to accept the contention. It is not denied that no decree in the pre-emption suit could have been passed on or after 31.7.1986, on the ground of mere relationship to the vendors. The judgment in the case of Malik Said Kama! Shah reported as PLJ 1986 Supreme Court 576 took effect from the aforesaid target date. The Courts are consistent on the view that a fresh decree on the basis of aforesaid preference was wholly invalid. Jurisdiction conferred on the Court lies in its competence to decide a dispute in accordance with prevailing law. Judgments of the Supreme Court, its Shariat Appellate Bench and Federal Shariat Court were binding on other Courts, by force of a Constitutional mandate. The act of a Court in disregard of the judgments of the above Courts was denuded of legal authority and was clearly equivalent to an act without lawful authority and jurisdiction. Neither, consent nor estoppel could confer jurisdiction, where it did not exist. The pre-emption decree after 31.7.1986 was a nullity and passed without jurisdiction. Therefore, under Section 12(2) of Civil P.C., the Court could competently recall it to prevent misapplication of law as well as miscarriage of justice. Mere withdrawal of pre-emption money by the vendees would not estop them from claiming rescission of an invalid decree passed ex-parte in the pre­emption suit against them. Upon setting (aside) of the pre-emption decree on the ground of its invalidity, restitution was required to be brought about for restoration of the legitimate rights to the parties including refund of pre-emption money by the vendees and restoration of possession of the land by the pre-emptor-petitioner. The Court was possessed of enough jurisdiction in its inherent powers as well as Section 144 of Civil P.C. 'to order restitution for adjustment of rights flowing out of the reversal of pre-emption decree. However, an invalid act for passing of a decree in the pre-emption suit after the target date could not be sanctified in law. Writ jurisdiction is intended to foster the cause of justice and not subvert it. In view of aforesaid, there is no scope for interference in judicial review by this Court. Writ petition is, accordingly, dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 346 PLJ 1993 Lahore 346 Present: fazal KARIM, J PERVAIZ AKRAM-Petitioner versus COLLECTOR, KASUR and 3 others-Respondents Writ Petition No. 142 of 1993, accepted on 12.1.1993 (approved for reporting on 16.2.1993). Land Revenue Act, 1967 (W.P. Act XVII of 1967)-- —-S. 82 read with Constitution of Pakistan, 1973, Article 199(b)(i)--Arrears- Recovery as land revenue of—Arrest of defaulter's son—Challenge to-­ According to respondents, detenu had made a statement that he would pay money on behalf of his father, so he was arrested as surety—Admittedly, detenu had not stood surety for payment of arrears when original contract came into being—It is open to sercious doubt that term "defaulter" in Section 82(8)(b) includes a surety other than person who furnishes security under Section 82(8) of Act-Held: Detenu was not a person who had furnished security under Section 82(8) and there was no power under Section 82(1) to order his arrest-Petition accepted and detenu set at liberty. [Pp.347&348]A,B&C Mian Bashir Zafar, Advocate for Petitioner. Rana MuhammadArif, AA.G. for Respondents. Date of hearing: 12.1.1993. order By this petition under Article 199 of the Constituton, the petitioner Pervez Akarm prays that the detenu Javed Akhtar be set at liberty, for he is being illegally detained by the Collector, District Kasur, Tehsildar, Tehsil Kasur and the Superintendent District Jail, Kasur. 2. The facts are not disputed. The detenu is a brother of the petitioner. Their father Maqbool Ahmad is stated to be a defaulter within the meaning of Sections 81, 82 of the Punjab Land Revenue Act. 1967 read with Section 4(7) of that Act. It appears that notice under Section 81 of the Land Revenue Act was issued to Maqbool Ahmad but he was not to be found. According to the written reply of the Assistant Collector, the detenu appeared before him on 16.11.1992 and made a statement "before the undersigned that he would deposit the said dues of his father within 15 days failing which being surety he will be held responsible". The detenu did not pay the dues upto 1.12.1992. Consequently notice was served upon him to appear before him on 13.12.1992. He failed to do so. He was arrested on 14.12.1992 and was then sent to District Jail, Kasur for 26 days by the order of the Collector. 8. In short, the case of the Assistant Collector is that the detenu has been detained as surety of his father, and he too is a defaulter. 9. Sectjpn 81 of the Land Revenue Act requires a notice of demand to be issued to the defaulter. Under Section 82 of the Act after the lapse of 20 days of the service of the notice of demand under Section 81, if arrears of land revenue remain unpaid, the Revenue Officer may issue a warrant directing the arrest of the defaulter or the person who furnished security under clause (b) of sub-section (8). When the defaulter is brought before the Revenue Officer, he may cause him to be taken to the Collector. When the defaulter is brought before the Collector, he may issue an order directing him to be confined in the Jail for a period not exceeding one month. By sub-section (8) of Section 82, a defaulter who is being kept under personal restraint of the Revenue Officer or is being confined in the civil jail shall forthwith be set at liberty (a) on the arrears due from such defaulter being paid or (b) on the defaulter furnishing to the Revenue Officer ordering his arrest, or the Collector, security to the satisfaction of the Revenue Officer or the Collector, as the case may be, for the payment of the arrears due from him. 10. The expression "default" is defined in Section 4 sub-section (7) of the Land Revenue Act to mean a person liable for an arrear of land revenue and "includes a person who is responsible as surety for payment of the arrear. 11. It has been seen that according to the respondents, the detenu had made a statement to the effect that he would pay the money on behalf of his father. It was on the basis of that statement that the detenu was treated as surety. Thus, admittedly, the detenu had not stood surety for the payment of the arrears when the original contract came into being. It is clear also that the detenu has been arrested and detained in the purported exercise of the powers under Section 82, sub-section (1). Under that section the power is to arrest the defaulter or the person "who furnishes security under clause (b) of sub-section (8)". The definition of the expression 'defaulter' in Section 2(7) is, as all definitions generally are, subject to "anything repugnant in the subject or context." As regards the 'subject' liability of a surety does not under the general civil law ordinarily include the liability to arrest. Even, under the criminal law, a person who stands surety for another is liable, under Section 514 of the Code of Criminal Procedure, to imprisonment after he has suffered the forfeiture of his bond because that section so provides. As to the context of Section 82 of the Land Revenue Act, it is open to serious doubt that the term 'defaulter' in the expression "may issue a warrant directing an officer named therein to arrest the defaulter or the person who furnishes security under clause (b) of sub-section (8)" includes a surety other than the person who furnishes security under sub-section (8). There cannot be any doubt that the person who has furnished security under sub-section (8) of Section 82 becomes a surety of the principal debtor and there was, therefore, no need, when creating the liability to arrest, to mention that person expressly. So the express mention of that person, when giving the power to arrest, was evidently intended to exclude other sureties. This construction accords with the well known ^ principle that statutes affecting the liberty of citizens must be strictly construed and that if there be any doubt, that must be resolved in favour of the citizens. 3. The question in this case is whether the detenu was a person who had furnished security under Clause (b) of sub-section (8) of Section 82 of the Land Revenue Act. The answer is plainly in the negative. It has been seen that sub­ section (8) of Section 82 applies when the defaulter has been arrested and has een directed to be confined in Jail. Here, no defaulter was arrested or confined in Jail and there was, therefore, no question of any defaulter being set at liberty or any security being furnished under sub-section (8). It must follow, therefore, that the detenu was not a person who had furnished security under sub-section (8) and there was, therefore, no power under sub-section (1) of Section 82 to order his arrest. 4. For these reasons, the writ petition is accepted and it is held that the — arrest and detention of the detenu is without lawful authority and is of no legal effect. He shall be set at liberty forthwith. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 348 PLJ 1993 Lahore 348 Present: mian allah nawaz, J ABDUL HAKEEM and others-Petitioners versus ADDITIONAL COMMISSIONER (REV.)/S.C.(L)/CHIEF SETTLEMENT COMMISSIONER, GUJRANWALA , and another-Respondents Writ Petition No. 324/R of 1992, dismissed on 10.1.1993 (approved for reporting on 17.2.1993). (i) Evacuee Property & Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975)-- —S. 2(2) read with Displaced Persons (Land Settlement) Act, 1958, Section 12(2)~Evacuee land-Sale of resumed land to respondent No. 2-Challenge to- -Though Notified Officer had authority under Section 2(2) of Act, 1975, to decide pending matters in consonance with provisions of Section 12(2) of Displaced Persons (Land Settlement) Act, 1958, he had powers of Chief Settlement Commissioner to make sale of land in compensation pool—Notified Officer had made sale after taking into consideration circumstances of case-­ Held: Decision of Notified Officer is neither arbitrary nor perverse and does not call for interference in constitutional jurisdiction—Petition dismissed. [P.353]C (ii) Settlement and Rahabilitation Matters- —Evacuee land-Allotment of~Whether petitioners can be treated as informers-Question of~Word "informant" has not been defined in Section 14(1-A) of Displaced Persons (Land Settlement) Act, 1958-It has, therefore, to be interpreted according to ordinary meaning given in dictionary—A person will be treated as informant who had taken some initiatory steps in commencing proceedings in time before or after commencement of Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 under Section 10 of 1958 Act—Held: Petitioners having not laid any information before or after advent of Act, 1973, are not entitled to be treated as informants-Held further: Conclusion arrived at by Notified Officer, is eminently correct and does not call for any interference in Constitutional jurisdiction. [Pp.351,352&353]A&B Mr. A.R. Shaukat, Advocate for Petitioners. Date of hearing: 10.1.1993. order The dispute, in this constitution petition pertains to allotment of evacuee agricultural land situated in revenue estate Jalalpur Sohbtian, Tehsil and District Gujrat which was resumed from one refugee-allottee Mst. Farrukh Jahan vide order dated 2.11.1992 passed by the Additional Settlement Commissioner/Notified Officer, Gujranwala Division (Camp at Gujrat). 2. Although this petition has a chequered history yet the facts in the background of this petition are not fortunately in dispute. Mst. Farrukh Jahan and Mst. Asmat Jahan were the legal heirs of Mir Mehrban deceased who abandoned vast movable as well as immovable property in the District of Rohtak (India) in communal disturbances in 1947. After migration to Pakistan they settled in village Jalalpur Sohbtian District Gujrat, submitted their claim for verification by Claim Organisation who issued them entitlement-certificates. They, thereafter secured allotment of agricultural land situated in various revenue-estates including revenue estate Jalalpur Sohbtian, District Gujrat. On 31.1.1967 they received a notice from the Deputy Secretary (Rural)/Deputy Settlement Commissioner for the purpose of appearance on 7.2.1967 for submitting certain explanations. They entered appearance'before the said authority. The hearing was changed from time to time till 18.5.1967 when they were asked to make a detailed statement in respect of their claims and allotments secured by them. The statement was made by Kalim Ahmad General Attorney of Mst. Farrukh Jahan and Asmat Jahan. This, however, did not bring the matter to end. Thereafter they were asked to submit full details of their claims as well as allotments secured by them. Feeling aggrieved with these proceedings, Mst. Farrukh Jahan and Mst. Asmat Jahan filed writ petition No. 994/R-67. During the hearing of the same one Mr. Razi Haider, Naib-Tehsildar entered appearance in pursuance of the order of the Court and stated that according to record st. Farrukh Jahan was owner of 23575 P.I.Us, while she had secured allotment of agricultural land in various revenue estates to the extent of 30554 P.I.Us, including the land situated in revenue estate Jalalpur Sohbtian District Gujrat (hereinafter described as disputed land). According to him she had secured excess allotment to the extent of 6979 PJ.Us. This statement of Mr, Razi Haider was not disputed by Mst. Farrukh Jahan. In result thereof the petition filed by Mst. Farrukh Jahan and Mst. Ismat Jahan was dismissed and the Settlement authorities were found entitled to deal with the case of these allottees according to the statement of Mr. Razi Haider and documents marked A & B. This happened vide judgment of this Court dated 20.11.1973. 7. Pursuant to order noted above, the Additional Settlement Commissioner by means of order dated 15.4.1982, resumed the land allotted to Mst. Farrukh Jalian to the extent of land equivalent to 6979 P.I.Us and further hi exercise of his powers under Section 12(2) of Displaced Persons (Land Settlement) Act No. XLVII of 1958 (Shortly hereafter stated as Act) made the sale of so resumed land to Mst. Farrukh Jahan at the rate of Rs. 10/- per unit. Feeling dissatisfied with the above order, the petitioners preferred writ petition No. 303/R-82 which was disposed of by the consent of the parties vide order dated 18.2.1990 and the case was remanded back to the Notified Officer for decision of the question as to whether the notified officer had power to allow sale of excess land resumed from the allottee under Section 12(2) of the Act and whether the petitioners were informers and were entitled to benefit of Section 14(1-A) of the Act. 8. In view of this order, the Addl. Commissioner/Notified Officer, Gujranwala found that the petitioners were not informers within the meaning of Section 14(1-A) of the Act as they had not submitted any application under Section 10/11 of the Act against Mst. Farrukh Jahan and Mst. Ismat Jahan. It was further held that the allotment had been made two decades back and that the properties allotted to Mst. Farrukh Jahan and Mtf. Ismat Jahan had changed from more than one hands and, therefore, it was appropriate to make the sale in favour of Mst. Farrukh Jahan and Mst. Ismat Jahan under Section 12(2) of the Act. This constitution petition has been filled by the petitioners in order to challenge the validity/propriety of order of the Addl. Settlement Commissioner dated 2.11.92. 9. Mr. A.R. Shaukat, Advocate^ the learned counsel for the petitioner impeached the impugned order on two-fold grounds: Firstly that the petitioners though had not lodged information under Section 10/11 of the Act, yet they were brought on record as party by this Court in W.P. No. 994/R-67 which was dismissed vide order dated 20.11.1973. Thereafter when the Settlement authorities resumed proceedings to deal with case of Mst. Farrukh Jahan, petitioners had been participating in the proceedings and proved before the concerned authorities that Mst. Farrukh Jahan had secured allotment over and above her entitlement. On the basis of the material furnished by the petitioners the Notified Officer came to the conclusion that Mst. Farrukh Jahan was in possession of the area more than her entitlement and resumed the excess allotment. On these circumstances it was contended that petitioners were informers and were entitled to benefit under Section 14(1-A) of the Act. Secondly, that the Notified Officer had no jurisdiction to exercise the power of Chief Settlement Commissioner under Section 12(2) of the Act and, therefore, had no authority to make sale of resumed land in favour of Mst. Farrukh Jahan. Reliance was placed on Sher Muhammad vs. Chief Settlement Commissioner (1971 SCMR 339), Ghulam Muhammad vs. Member Board of Revenue (1988 SCMR 514), Said Muhammad vs.Addl. S.C. (1988 CLC 1276), Rehmat All vs. Sett. Commissioner (PLD 1980 SC 214), Maj. Altaf Khan vs. Mst. GaitiAra (1980 SCMR 1036) and Shahnawaz vs. Member Board of Revenue (PLD 1978 SC 266). 3. From the above narration the questions arising for decision are whether on facts available on the record, the petitioners can be treated as informer under Section 14(1-A) of the Act and are entitled to seek allotment of land resumed from Mst. Farrukh Jahan and whether the Notified Officer had authority to make sale of land resumed from Mst. Farrukh Jahan to her under Section 12(2) of the Act. In order to answer the first question it will be proper to refer to historical background of Section 14(1-A) of the Act. With the dawn of Independence our newly created country was confronted with massive and gigantic task of rehabilitation/re-settlement of Muslims who were displaced from India and driven to this country. Number of legislative as well as executive measures were taken by this country to this effect. On 23.9.58, the Displaced Persons (Land Settlement) Act XLVII of 1958, was promulgated with an object "to provide for the permanent settlement of displaced persons on land in order to compensate them 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 for matters incidental thereto or connected therewith". Under this act permanent settlement of displaced persons was undertaken. Agricultural land in compensation pool under Section 5 of the Act was finally allotted to displaced persons having verified claims in accordance with the mechanism provided under the West Pakistan Rehabilitation Settlement Scheme, 1956 and other Schemes and circulars issued by the Chief Settlement Commissioner. With the passage of time it dawned upon the concerned authorities that huge number of persons had maneouvred to secure allotment of land by means of practising fraud and deception upon settlement/Rehabilitation Authorities. In order to unearth such allotments Section 14(1-A) was inserted in the Act by means of Evacuee Property and Displaced Persons Laws (Amendment) Act, on 30.7.1973. Thereafter Section 14(1-A) was put in Displaced Persons (Land Settlement) (Amendment) Ordinance (VI of 1974). Finally this provision in a bit modified form was made part of the Act by means of Displaced Persons (Land Settlement) (Amendment) Act XXXVI of 1974 which came into force on 15.5.1974. 4. From the aforesaid historical perspective of Section 14(1-A) it is quite clear to me that underlying object of this legislative provision was to provide a mechanism for the purpose of unearthing the allotments of land in compensation pool secured by different persons through means of misrepresentation, fraud and deceit. In order to achieve this purpose this provision provided an incentive to those displaced persons who were well equipped with knowledge regarding acquisition of fraudulent allotments and were having claim which was still pending settlement. In order to have a better understanding of the object and scope of Section 14(1-A) as amended, it will be useful to reproduce this section in extenso. It reads as under:- "(IA) Where, at any time before or after the commencement of the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 (LV of 1973), any person has furnished or furnishes information about any bogus or fraudulent allotment of land and the information has been or is proved to be correct and such land has been or is resumed by competent authority upon the cancellation of the allotment of such land, the informant shall be entitled (a) if he is a claimant, to allotment of the resumed land to the extent of his claim pending for allotment in the same Province or, if the resumed land has already been allotted to some other person, to the allotment, to the said extent, of any other land of his choice available for allotment in the same Province; and (b) hi any other case, to a cash award of such amount as the Chief Settlement Commissioner may decide." 8. From the close reading of the above provision it becomes clear that it has three parts; (i) that some person has furnished or furnishes information about any bogus or fraudulent allotment of land before commencement of Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 (ii) that the information has been or is proved to be correct and such land has been or is resumed by the competent authority; (iii) that upon the cancellation of allotment of such land the informant is bestowed with a right to seek allotment of resumed land to the extent of his unsatisfied pending claim. It clearly follows that the informant is entitled to benefit in this sub-section to the extent of his unsatisfied claim..The question for decision is who is informant within the meaning of this provision. It is settled principle of construction that very Statute is to be interpreted in organic manner and further if any word in the given Statute is not defined, then ordinary meaning of the word are to be followed. 'Informant' ordinarily means "one who communicates information; one who informs against another; one who lays information against another regarding some infraction of law (Shorter Oxford English Dictionary)". Word 'Informant' in the above 14(1-A) has not been defined. Therefore, I hold that this will be interpreted according to above meaning given in the Dictionary. Guided by the above principles, it becomes clear that a person will be treated as informant who had taken some initiatory steps in commencing proceedings in time before or after the commencement of Evacuee Property and Displaced Persons Laws (Amendment) Act (LV of 1973) under Section 10 of the Act. No other person is entitled to claim benefit under this section. Applying this principle to the facts and circumstances of this case it is clear that the petitioners had not laid any information before or after the advent of Act LV of 1973. Petitioners are thus, not entitled to be treated as informant on the simple ground that they are impleaded as Party in Writ Petition No. 994/R-67 by this Court and had participated in the proceedings thereafter. The conclusion arrived at by the Notified Officer is, therefore, eminently correct and in consonance with law and does not call for any interference in constitutional jurisdiction of this Court. The authorities cited by the learned counsel for the petitioners proceed on distinguishable facts and are not applicable to the facts and circumstances of the instant case. 6. So far the second question is concerned though Notified Officer had authority under sub-section (2) of Section 2 of the Evacuee Property & Displaced Persons Laws (Repeal) Act (XIV of 1975) to decide the pending matters in consonance with the provisions of Displaced Persons (Land Settlement) Act under Section 12(2) the Notified Officer had the powers of Chief Settlement Commissioner to make the sale of the land in compensation pool. The Notified Officer had made the sale after taking into consideration the circumstances of the case. He had come to the conclusion that the allotments were made two decades back; that the property had been changing from more than one hands and in the interest of justice, it was proper to make sale of resumed land in favour of Mst. Farrukh Jahan. This decision of the notified officer is neither arbitrary nor perverse, therefore, • does not call for interference in constitutional jurisdiction which is intended to foster justice between the parties. 7. In the light of foregoing analysis this constitution petition is found to be without any merit and is accordingly dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 353 [Multan Bench] PLJ 1993 Lahore 353 [Multan Bench] Present: MIAN GHULAM AHMAD, J KHAN MUHAMMAD-Petitioner versus ABDUL RASHID and another-Respondents Civil Revision No. 139 of 1992, dismissed on 6.3.1993 Arbitration Act, 1940 (X of 1940)-- —-S. 14 read with Civil Procedure Code, 1908, Order XXIII Rule 3--Specific performance of agreement-Suit for~Reference to arbitration—Denial of— Whether award could be made rule of court when one party denies execution of agreement for reference of dispute to arbitration-Question of—There is no legal bar to parties agreeing to refer dispute to arbitration without intervention f court and then place award for consideration as a compromise or adjustment of suit under Order XXIII Rule 3 of C.P.C.~In this case, parties are not only at variance, but one of them has disputed his initial agreeability to appointment of an arbitrator for settlement of dispute-Held: Lower courts have rightly held that court could not enforce such an award-Petition dismissed. [Pp.355&356]A,B,C&D Mr. Muhammad Jehangir Arshad, Advocate for Petitioner. Nemo for Respondents. Date of hearing: 6.3.1993. judgment By way of this revision petition Khan Muhammad petitioner has impugned the validity of orders dated 12.6.1990 and 12.10.1991 passed respectively by Ch. Muhammad Tamar Hayat, Civil Judge, Mailsi, and Ch. Muhammad Iqbal Naroo, Addl. District Judge, Vehari, in the course of proceedings of a civil suit filed for specific performance of a sale agreement dated 2.10.1982 by Khan Muhammad against Abdul Rasheed. I need not narrate the history of the litigation, that finds mention in a sufficient measure in the impugned orders. 9. While the matter was pending before the Civil Judge, the parties are stated to have agreed on 10.4.1989 to refer it for decision to an arbitrator, Mian Muhammad Iqbal Borana, Chairman Union Council, Karampur, Tehsil Mailsi, District Vehari. He gave an award on 16.4.1989, expressing himself against the defendant, who according to him had agreed to sell two acres of his land for a consideration of Rs. -15000/- to Khan Muhammad plaintiff and received from the latter an amount of Rs. 12000/- and then resiled. Khan Muhammad deposited the balance amount Rs. 3000/- with the court, but it was revealed that Abdul Rasheed was owner of a total area of 12 kanals and 17 marlas only. Even a mutation (No. 454 dated 24.10.1983) was shown to have been sanctioned in favour of Khan Muhammad and incorporated in the revenue record. 10. Award was announced on 25.5.1989, and Khan Muhammad submitted an application on 29.5.1989, with a prayer that the award be made the rule of the court u/s 14, Arbitration Act, This application was opposed by Abdul Rasheed, who made a point-blank refusal about having agreed to appointment of any person as referee of "arbitrator at all. The learned Civil Judge heard the learned counsel for the two sides, in regard to the question whether or not Khan Muhammad's petition was maintainable, and came to the conclusion that the matter could not be referred to arbitration, without adverting to the question if the parties to the dispute had ever agreed to have the controversy resolved through arbitration. This opinion was endorsed by the appellate court below. 4. Chapter IV, Arbitration Act, 1940 deals with arbitration in pending suits. As provided by Sections 21 to 25, parties whose interests are involved in the pending litigation may refer their differences to arbitration at any time before the judgment is pronounced, but this has to be done not without intervention of the court. The parties are required to apply in writing to the court for an order of reference, and appointment of arbitrator shall be made in the manner, as agreed upon between the parties. A reasonable time has to be given to the arbitrator for announcing the award, and so long as the matter remains with the arbitrator, the court shall not deal with it in any manner, save as permitted by the provisions of the Act. Of course, the suit may continue so far as it relates to the parties, who have not agreed to such reference and as regards matters left out of the reference, in the event of the same being separable from rest of the subject-matter of dispute, and only those parties who have actually joined the exercise being bound by the award. 2. There should thus be no confusion about the proposition that although the parties to a litigation may arrive at a settlement outside the court and bring the litigation to an end, as stipulated by Order 23, rule 3, CPC, if the controversy has to be resolved through arbitration, in a pending case, steps to have the same materialised will be taken with the knowledge and permission of the court, and such arrangement cannot be enforced without intervention of the court. The only exception provided is the one contemplated by Section 47, a residuary section, proviso to which makes a provision for implementation of such awards, which are brought into being, without intervention of the court, and may be enforced as an adjustment of the suit or settlement of the dispute under Order 23, rule 3, CPC, but sine-qua-non for such an eventuality is the consent of all the parties interested. There is no legal bar to the parties agreeing to refer their dispute to arbitration, without intervention of the court, and then to place the award, made in pursuance of such arbitration, for consideration as a compromise or 'adjustment' of the suit. 3. In the instant case the parties are not only at variance respecting the so- called award, one of them has disputed his initial agreeability to appointment of an arbitrator for settlement of the dispute, without the routine exercise to be undertaken by the court in civil proceedings. 4. As such, the learned lower courts have righty held that the court could not enforce such an 'award'. Where was the necessity then to call upon the parties to lead evidence, in that regard, in order to find out if the appointment of the arbitrator had been made, as maintained by the defendant respondent, without his consent? The argument of the learned counsel that it was only an application for setting aside an ex-parte decree, that was pending before the court, and it could not be treated as proceedings of a civil suit, attracting applicability of the abovesaid provisions of the Arbitration Act (Sections 21 to 25), is obviously devoid of force. The contention that the matter was disposed of by the lower courts in a summary manner, without putting the parties to trial as regards execution of the greement, for decision of the dispute through .arbitration, does not merit consideration, since a party to the dispute has denied execution of such agreement, as also his submission to authority of the arbitrator, and has questioned the validity of the award. 8. There is hardly any merit in the revision petition, which is hereby D dismissed, but without any order as to costs. The parties shall go back to the trial court, where the civil suit shall be decided in accordance with law. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 356 PLJ 1993 Lahore 356 Present: malik muhammad qayyum, J EMIRATES BANK INTERNATIONAL LTD--Petitioner versus _ M. IRFAN MONNOO and another-Respondents C.O.S. No. 17 of 1989, decreed on 10.3.1993 (i) Civil Procedure Code, 1908 (V of 1908)-- 1S. 20(b)-Recovery of UA.E: Dirhams 737706--Suit for-Whether High Court at Lahore.has no jurisdiction-Question of—It is not disputed by defendants that defendant No. 2 is sole proprietor of defendant No. 1 which is a trade name under which he is carrying on his business~As such defendant No. 2 is not an entity separate from defendant No. l~Agreement was executed between parties at Lahore, for discharge of liability by defendants, and, as such, cause of action, at least, in part, arose at Lahore—Held: For this reason, High Court has jurisdiction to try suit. [P.359JD (ii) Decree- —Recovery of UA.E. Dirhams 737706—Suit for-Agreement between parties and defendant willing to pay said amount-What should be rate of exchange of UA.E. Currency-Question of-According to para 1 of agreement, defendants undertook to repay U A.E. Dhs. 737706 in full and final settlement of accounts between parties-No payment has yet been made—Defendants are, therefore, liable to pay said amount hi foreign currency and if they are unable to do so, they should pay equivalent amount in Pakistani currency-Held: It would be anamolous to hold that although defendants have not yet discharged thenliability, yet loss suffered on account of fall of value of Pakistan rupee as against U A.E. currency, should be borne by plaintiff. [Pp.357&358]A,B&C 1992 SCMR 2238 re/. (iii) Limitation- —Recovery of UA.E. Dirhams 737706-Suit for-Whether suit was barred by time-Question of—A" reading of plaint leaves no doubt that suit of plaintiff is based upon agreement arrived at between parties on "ra.1986 whereby defendants undertook to pay UA.E. Dirhams 737706 in full and final settlement of accounts-Present suit is based on this agreement and not on original debt-Held: Law is well settled that even a time barred debt is valid consideration of an agreement to repay debt and suit can be based upon agreement notwithstanding that if suit is filed for recovery of original debt, it would be barred by time-Decree for recovery of UA.E. Dirhams 737706 or equivalent amount in Pakistani currency at rate of exchange prevailing at time of actual payment, passed in favour of plaintiff. [PJE,F&G AIR 1929 Allahabad 657, AIR 1932 Lahore 212, PLD 1977 Karachi 521,1986 MLD 344, NLR 1987 U.C. 324 and 1991 CLC 1758 rel. Syed Najamul Hassan Kazmi, Advocate for Plaintiff. Mr. Shahid Hamid, Advocate for Defendants. Date of hearing: 10.3.1993. judgment On 2nd August, 1989, this suit was filed by M/S Emirates Bank International, a Banking Company against M. Irfan Monnoo and Radco Enterprises through its sole proprietor, Mr. Irfan Monnoo, for recovery of Rs. 10.108,709.93, equivalent to U.A.E. Dhs. l,742,.880.93 as on 30th June, 1989, alongwith costs and future interest. 5. It is' stated in the plaint that defendant No. 1 is the sole proprietor of defendant No. 2 and was maintaining different accounts with the Main Branch of the plaintiff-Bank in Dubai, UA.E. According to the plaintiff, the defendants were allowed various financial facilities mentioned in para 5 of the plaint which were fully availed by them but defendant No. 2 left UA.E. without discharging his liability and shifted to Lahore . It has claimed that the amount in dispute is due and payable by the defendants. 6. On an application made by the defendants, they were on 30th January, 1991 granted leave to appear and defend the suit, subject to furnishing of security in the sum of Rs. 35 Lacs. The security was furnished by the defendants, whereafter they filed their written statement. 7. On 2nd March, 1992, during the course of hearing of the suit, it was stated by the learned counsel for the defendants that they were still ready and willing to abide by the agreement between the parties dated 4th August, 1986. This offer was accepted by the learned counsel for the plaintiff. According to this agreement, the defendant had undertaken to pay UA.E. Dhs. 737706/- in full and final settlement of their liability. 8. However, before any decree could be passed, a dispute arose between the parties as to what should be the rate of exchange applicable while converting U.A.E. Dhs. into Pakistani rupee. The parties were, therefore, called upon to address their arguments on this question which have been heard. The learned counsel for the defendants had also raised two preliminary objections as to jurisdiction and limitation on the basis of which it was contended that no decree at all can be passed against the defendants. 6. There is no dispute and it stands admitted on the record that a settlement was arrived at between the parties, terms whereof are reflected in the agreement dated 4th August, 1986, a copy of which has been placed on record. According to para 1 of this agreement, defendants undertook to repay UA.E. Dhs. 737,706 in full and final settlement of accounts between the parties. Both the learned counsel agree and accept this agreement. The dispute, however, as already mentioned, is as regards the rate of exchange. 7. According to the learned counsel for the plaintiff, the rate of exchange while converting UA.E. Dhs. into Pakistani rupee should be the rate prevailing at the time of payment of the aforesaid amount by the defendants to the plaintiff. The learned counsel for the defendants, on the other hand, is of the view that the rate of conversion which should be applied should be the rate which prevailed at the time when the amount fell due i.e. in 1982. 8. After hearing the learned counsel for the parties, I am unable to agree with the learned counsel for the defendants and am of the view that the contention of the learned counsel for the plaintiff that the rate of exchange should be that prevailing at the time when the defendant pays the amount in question is correct. In the agreement dated 4th August, 1986, the defendants had clearly undertaken to pay U.A.E. Dhs. 737706, but no payment has as yet been made. The defendants, are, therefore, liable to pay Dhs. 737,706 to the plaintiff. In case they are unable to do so, they should pay equivalent amount in Pakistani currency. It would be anamolous to hold that although defendants have not yet discharged their liability by paying the amount due yet loss suffered on account of fall of value of Pakistani rupee as against UAE Dhs should be borne by the plaintiff. I am guided by the judgment of the Supreme Court, namely, Temi S.P-A. vs. Peco (Pakistan Engineering Company) Ltd.(1992 SCMR 2238). Following observations of the Supreme Court are conclusive of the controversy and may be reproduced with advantage:- "Justice demands that the creditor should not suffer from fluctuations in the value of the Pakistani rppee. If his conduct is for a foreign currency and he has bargained for the same, he should get that currency and no other. If the currency of contract is a foreign currency, or where under the contract the particular amount claimed is payable in a particular foreign currency and payment is demanded in that foreign currency, that is a substantive matter and no procedural rule or regulation should, in principle, be allowed to affect the creditor's rights. If a judgment can be given "for so much in foreign currency or the Pak rupees equivalent thereof, it is giving effect to the substantive obligation of the contract and the Civil Procedure Code would not in any case stand in the way. Supreme Court can depart from a previous rule or interpretation, if it feels that circumstances have changed and that not to do so would lead to injustice. The development of the law should not be permitted to be stifled. It should move with the time and articulate the changes coming in. Therefore, a Pakistani Court can grant a judgment for "so much in foreign currency or the Pak rupees equivalent thereof. 2. Now adverting to preliminary objection raised by the learned counsel for the defendants as regards the territorial jurisdiction of this Court, learned counsel submitted that as defendant No. 2 was carrying on business in UAE notwithstanding the residence of defendant No. 1 was in Lahore, the suit could not be filed at Lahore without permission of this Court on the basis of residence of one of the defendants only. 3. This contention of the learned counsel is unfounded. As has been stated in the plaint and not disputed by the defendants, defendant No. 2 is the sole proprietor of defendant No. 1 which is a trade name under which he is carrying on his business. As such, defendant No. 2 is not an entity separate from defendant No.l. Furthermore, defendant No. 2 in this case has been arrayed through M. Irfan Monnoo, its sole proprietor with the address at 30 Shahra-e-Quaid-e-Azam, Lahore. It is also to be seen that according to the case of the plaintiff, an greement was executed between the parties on 4th August, 1986, at Lahore , for ischarge of liability by the defendants and as such, cause of action at least in part arose at Lahore . For this reason, this Court has jurisdiction to try this suit. Be that as it may, it is a fit case where the plaintiff should be granted permission even if same be necessary, under Section 20(b) of Code of Civil Procedure, 1908. 4. The other objection of the learned counsel for the defendants relates to limitation. It was submitted that according to the documents on record, loans were granted to the defendants many years back and with regard to over-draft amount, last payment was made on 20th May, 1989, while in time loan account the last payment was on 19th May, 1989. On these premises, it was argued that suit filed on 2nd August, 1989 was barred by time and despite admission of liability by the defendants, the suit cannot be decreed. 12.1 regret my inability to agree with the learned counsel. A reading of plaint leaves no doub that suit of the plaintiff is based upon the greement arrived at between the parties on 4th August, 1986 whereby defendants undertook to pay UAE Dhs. 737706/- in full and final settlement of the accounts. The present suit is based on this agreement and not the original debt. The law is well settled that even a time barred debt is valid consideration of an agreement to repay the debt and suit can be based upon that agreement notwithstanding that if the suit is filed for the recovery of original debt, would be barred by time. Reference in this connection -may be made to Nathu Singh and another v. Girwar Singh and another (AIR 1929 Allahabad 657), Bharat National Bank Ltd v. Bishan Lai and another (AIR 1932 Lahore 212), United Bank Ltd Karachi v. KS.Kamal (PLD 1977 Karachi 521), Messrs Hussain Corporation Ltd v. Messrs Habib Bank Ltd (1986 MLD 344), Shabbir Hussain etc v. Government of Pakistan etc (MLR 1987 UC 324) and United Bank Limited v. Kumool Muhammad Muneer (1991 CLC 1758). In view of what has been stated above, a decree for recovery of UAE Dhs. 737706/- or equivalent amount in Pakistani currency, at the rate of exchange prevailing at the time of actual payment, is passed in favour of the plaintiff and against the defendants, with costs as prayed for in the plaint. (MBC) (Approved for reporting) Suit decreed.

PLJ 1993 Lahore 360 (DB) PLJ 1993 Lahore 360 (DB) Present: IRSHAD HASSAN KHAN AND MUHAMMAD ARIF, JJ. M/-A.K.NASIR -— Applicant versus CONTROLLER OF ESTATE DUTY, LAHORE —- Respondent Civil Tax Reference No.26 of 1982 decided on 16-2-1993. (i) Estate Duty Act, 1950 (X of 1950)-- S.61(l) read with Section 58-A- Estate of Sir William Roberts - Re-evaluation of ~ Challenge to — Contention that unless statement of accounts was filed, proceedings under Section 58-A could not be initiated ~ Section 61 is a self contained provision which empowers Controller to re-determine valuation if it is discovered by him that too low a valuation was placed on property subject to estate duty - Proceedings were validly initiated and completed pursuant to a valid notice served on applicant - Held: Re-evaluation of disputed land by Controller of Estate Duty which was upheld by Tribunal, does not suffer from any infirmity in law -Held further: Question referred does not strictly arise out of Tribunal's order. [P.363]C,D&E (1976) 34 Tax 45(Lah.) and (1976) 34 Tax 49(Lah.) ref. (ii) Estate Duty Act, 1950 (X of 1950)-- S. 61(1) - Estate of Sir William Roberts - Re-evaluation of - Challenge to -Whether Tribunal was justified in holding that Controller was competent to re­ open assessment - Question of — Contention that statutory requirement of notice to accountable person specifically to submit an account of property having not been met with, action taken by Controller on basis of said notice was of no legal effect -- In phraseology used in notice, particular mention has not been made requiring accountable person to submit an account of property, but applicant was provided an opportunity to put in any representation/evidence against proposed re-evaluation under Section 61(1) of Act ~ Authorised representative of applicant appeared before Controller and made categorical statement that he did not wish to produce any evidence except written statement — Held: Requirement of Section 61(1) was fully met and mere absence of specific direction to accountable person to submit account of property, has not rendered notice void or f invaJJ4- & a«iA&B Mr. Imtiazjaved, Advocate for Applicant. Mr.Muhammad Ilyas KJian, Advocate for Respondent. Date of hearing: 14-2-1993 • JUDGMENT Irshad Hassan Khan, J.- The facts leading to this Reference by the Income Tax Appellate Tribunal, Lahore are that General Attorney of the Trustees of the estate of late Sir William Roberts, who died on 16-6-1971, filed an appeal before the Tribunal challenging before it the order dated 1-11-1975 passed by the Controller of Estate Duty, Lahore under Sections 61(1)/58-A of the Estate Duty Act, 1950, hereinafter called the Act, whereby the value of the agricultural land owned by the deceased was determined on the basis of market value at .Rs.l7;35,405/- in place of \aluation initially determined at the rate of Rs.10/- per Produce Index Unit. The appeal was, however, dismissed by order dated 4-7-1977 wherein it was held that the Controller of Estate Duty did not travel beyond the scope of his jurisdiction in re-opening the assessment under Section 61(1) of the Act in that in the original valuation of the land in dispute was not determined as prescribed under Section 38(1). The applicant herein moved an application under Section 59-A of the Estate Duty Act, 1950 for referring the following questions to this Court for decision:- "1. Whether on the facts and circumstances of the case the notice dated 13-8- 1975 was a valid notice within the meaning of Section 61(1) without requiring the assessee to submit an account of all property. 9. Whether the notice dated 29-9-1975 could be issued u/s 58-A without there being a pending return available for adjudication. 10. Whether a notice u/s 61(1) could be issued without there being any terial on record to show under valuation of the property. 11. Whether the rule 25-A not relied upon by the assessee could be made n basis for re-opening the assessment or upholding the same. 12. Whether the valuation made on the basis of one mode could be substituted by another mode when the earlier mode is n^c illegal. 6. . Whether the valuation made in the original assessment was illegal. 7. Whether the assessment could be re-opened on the basis that the earlier a'ssessment was not legal." 2. On the basis of material placed before it and after considering the submission of the parties, the Tribunal took the view that several questions specified in the application for reference were only of particular determination of one and the same question which was formulated in the following terms:- "Whether on the facts and circumstances of the case the Tribunal was justified in holding that the Controller was competent under Section 61(1) of the Estate Duty Act to re-open assessment." 3. Mr. Imtiaz Javed, learned counsel for the applicant argued that before proceeding under Section 61(1), the Controller had to issue a notice in terms of the said section which was not done in the instant case, hi tLat the statutory requirement was that the notice should specifically 'require an accountable person to submit an account of all property... within such time as may be specified by the controller in this behalf...' Here, the notice did not contain the afore-quoted requirement and therefore, the action taken by the Controller on the basis of said i notice was of no legal consequences. 4. The contention raised by the learned counsel for the applicant turns on the determination of the scope of notice issued by the Controller which reads as under :- "My predecessor determined the value of agricultural land owned by the late Sir William Roberts on the basis of Produce Index Units whereas the value of such lands should have been computed on basis of the market value as on the date of death of the late Sir William Roberts. In this view of the matter I propose to revalue the agricultural lands under sub-section (1) of Section 61 (of the Estate Duty Act, 1950). However, before I do so an opportunity is afforded to you to put in any representation/evidence against the proposed action." 5. A bare perusal of the notice served on the applicant would show that in the phraseology used therein a particular mention has not been made in it requiring the accountable person to submit an account of property within such time as has been specified by the Controller in this behalf but the applicant was provided an opportunity to put in any representation/evidence against the proposed re-valuation of the agricultural land under sub-section (1) of Section 61 of the Act. The term "evidence" used in the notice is of a wide connotation and B includes the direction for submitting an account of all the property within the meaning of Section 61 (1) ibid. It is not denied by the learned counsel for the applicant that the applicant failed to raise any objection as to the validity of the notice before the Controller. On the contrary, his authorised representative admittedly appeared before the Controller on 5-9-1975 and made a categorical statement that he did not wish to produce any evidence except the written statement, which he did on 4-9-1975. Thus visualised, the requirements of Section 61 (1) were fully met in this case and mere absence of specific direction to the accountable person to submit an account of all the property has not rendered the notice in question as void or invalid. 6. It is next contended that not only the Controller could not assume jurisdiction unless the statement of account was filed but the proceedings under Section 58A of the Estate Duty Act, 1950 could not be initiated unless there was a return pending adjudication before the Controller of Estate Duty. According to the learned counsel for the applicant, as there was no return pending before the Controller, therefore the power vesting in the Controller in respect of valuation under Section 58A was not attracted. This contention, too has no merit. Section 61 of the Act is a self contained provision which empowers the Controller to redetermine the valuation if for any reason it is discovered by him that too low a valuation was placed on the property subject to estate duty. Here, the proceeding 1 - were validly initiated and completed pursuant to a valid notice served upon the applicant. The applicant fully participated in the -proceedings before the Controller and declined to lead any evidence to contradict the report/s of the Deputy Commissioner, Rahim Yar Khan on which revaluation of the disputed land was made. There is great force in the submission of Mr. Muhammad Ilyas Khan that re-valuation did not suffer from any infirmity in law. It is not the case of the applicant that the re-valuation done by the Controller was on the higher side and that the same was not the market value at the relevant time. 7. . Be that as it may, the re-valuation done by the Controller after notice under Section 61(1) of the Act has the effect of setting right a manifest wrong in that the earlier valuation on the basis of Produce Index Unit-value had no warrant or authority in law. As held in Controller of Estate Duty vs. Syeda Kishwar Sultana and another (1976) 34 Tax 45 (Lah.) and Controller of Estate Duty vs. Tlie Estate of Syed QalanderAli Shah (1976) 34 Tax 49 (Lah.) rule 25-A(l) of the Estate Duty Rules, having been incorporated on 29-10-1971, could not be made the basis for the valuation of the disputed land with retrospective effect. 2. Looked at from whatever angle, the re-valuation of the disputed land by the controller of Estate Duty which w.as upheld by the Tribunal has not been shown to be suffering from any infirmity in law. 3. For the foregoing reasons we are of the opinion that question reproduced above does not strictly arise out of the Tribunal's order. The Reference is, therefore, returned as above. But there is no order as to costs in the circumstances of this case. Reference answered accordingly. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1993 Lahore 365 [Multan Bench] PLJ 1993 Lahore 365 [Multan Bench] Present: MIAN GHULAM AHMAD, J. MUHAMMAD KHALID —- Petitioner versus SHARIFAN BIBI and 4 others —- Respondents Civil Revision No.l25-D of 1993, dismissed on 2-3-1993 Civil Procedure Code, 1908 (V of 1908)-- —-O. XVII R.3-Non-production of evidence by plaintiff-Dismissal of suit- Challenge to-After framing of issues on 31-1-1990, plaintiff had not been able to bring his witnesses on as many as 9/10 occasions-On 13-11-1991, last opportunity was allowed to him for producing evidence on 8-12-1991, but on that date also, situation was same and even plaintiff did not care to be present before trial court- Held: Trial Judge had no other option but to close plaintiffs evidence and chuck out his case for want of proof-Held Further: Judgments and decrees of courts below do not suffer from any legal infirmity or irregularity-Petition dismissed. [Pp.366 & 367]A & B Mr. Abdul Rashid Sheikh, Advocate for Petitioner. Date of hearing: 2-3-1993. ORDER One Muhammad Khalid instituted a suit in January, 1989, against Muhammad Din, Sharifan Bibi and Mst. Safia, for recovery of Rs.20,900/-(Rs.20,000/- in cash, alongwith a wrist watch worth Rs.900/-), claimed to have been given by him to the defendants, while asking for hand of Safia Bibi for her marriage with his brother, Muhammad Shafique. The defendants having subsequently backed out, and that too, when the bride-groom with procession had arrived outside the house of the bride. The suit was contested and the plaintiff was called upon to produce his evidence. 2. The plaintiffs evidence was closed on 8-12-1991, as he had availed of a number of opportunities, and had failed to examine even a single ~ itnets. The suit was dismissed for non-proof of the plaintiffs claim, by reason of lack of evidence, on the same day, i.e. 8-12-1991, by the learned Civil Judge, Sahiwal, Mr. Nasrullah Khan. The un-successful plaintiff filed an appeal, which was, on 28-11-1992, dismissed by Mr. Sarfaraz Ahmad Tarar, Addl. District Judge, Sahiwal. The plaintiff has preferred the present revision petition. 3. Learned counsel appearing for the plaintiff-petitioner does not deny that large many chances had been given to the plaintiff for his evidence. I am amused to hear him arguing that although the plaintiffs evidence could be closed under Order 17, rule 3 CPC, it was not open to the trial court to have dismissed the suit. The court should have instead proceeded with the suit, it is submitted. The learned counsel, however, has been unable to satisfy me as to how could the suit be proceeded with, when neither the plaintiff nor his witnesses were in attendance, and especially when the nature of his claim was such that it required j sufficient evidence of oral character, in support, without there being available on - i record any document, whatever, having been brought into being at the time of payment of the amount in question. A perusal of the judgment of the learned Addl: District Judge reveals that after the issues were framed on 31-1-1990, the plaintiff had not been able to bring his witnesses on as many as 9/10 occasions. On 13-11-1991, the plaintiff came to the court, but without his witnesses, and he was allowed one last opportunity for producing his evidence. When even on the next date, i.e. 8-12-1991, it was the same situation, and the plaintiff had not even cared to be present in person, the trial court proceeded to apply the penalty provision of Order 17 rule 3 CPC. Manifestly the learned trial judge had no other option but to close the plaintiffs evidence and chuck out his case for want of proof. 4. The judgments and decrees delivered by the two courts below do not suffer from any legal infirmity or irregularity, and in fact in passing the impugned orders the lower courts had served the ends of justice, by refusing to prolong the proceedings further and extend to the plaintiff-petitioner undue accommodation, I The revision petition has no merit and is hereby dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 372 (DB) PLJ 1993 Lahore 372 (DB) Present: IRSHAD hassan khan and muhammad arif, JJ. M/S TUFAIL MUHAMMAD and BROTHERS Applicant versus COMMISSIONER OF INCOME TAX, RAWALPINDI Respondent Civil Tax Reference No. 119 of 1974, decided on 24-2-1993 Income Tax Act, 1922 (XX of 1922)-- —S. 66(1) read with Sections 2(11) and 25--Partnership firm-Assessment of-- Challenge to-.-Whether assessment for period 1-8-1965 to 30-6-1966 was barred by limitation, and whether assessment for that period could be legally made - Questions of-Contention that applicant firm stood dissolved on 30-6-1966, therefore income accrued to it during year ending on 30-6-1966 could not be subjected to tax for assessment year 1967-68-Admitted position is that I.T.O. had concluded assessment for year 1972 and period of 4 years had elapsed by that time-Objection of limitation specifically pleaded in memo of appeal, was not pressed before Tribunal-Return for period 1-8-1965 to 30-6-1966 was taken into account for first time while passing order dated 30-6-1972~Held: Question of limitation does not arise—Held further: .Section 25(1) permits an assessment in or before expiry of previous year itself in addition to assessment of income of previous year preceding particular accounting year-Question No.l answered in negative and question No.4 in affirmative. rp p ,374&376]A,B,C&D Mr. AH Bin Abdul Qadir, Advocate for Applicant. Mr. Muhammad Ifyas Khan, Advocate for Respondent. Date of hearing: 22-2-1993. JUDGMENT Irshad Hasan Khan, J.~ This reference under Section 66 (1) of the Income Tax Act, 1922 (hereinafter referred to as the Act) has arisen in the background that the petitioner a firm of partners doing business at Lyallpur in the manufacture and sale of cloth made of art silk and cotton yarns on power looms. The year of account of the assessee firm used to close on 31st of July every year. An assessment for the tax year 1966-67, relevant to the accounting-year ended on 31-8-1965, had already been made. Thereafter, the assessee firm was dissolved on 30 6-1966 and the business of the firm discontinued from that date. The income r the accounting period, 1-8-1965 to 30-6-1966, remained to b? : in process for : sessment year 1966-67. The assessee filed the tax return on 14-9-19C3. This was •• .lowed by another tax return for accounting period 1-8-1965 to 306-1966 relevant :o the next tax-year 19-66-67, showing the same figure. It is alleged that the Income Tax Officer ignored the earlier tax return filed by the assessee for the assessment year 1966-67. When the assessment proceedings for the taxing year < v67-68 relating to the subsequent return dated 1-2-1968 concluded, the assessee •ised the objection that as the Income Tax Officer had concluded the assessment 'he year 1972 and period of four years had since lapsed, therefore, the sment was barred by virtue of Section 34 (2) of the Act, which provides that , der of assessment under Section 23 or assessment or re-assessment under Action (1) of the said section shall be made after the expiry of four years • the end of the year in which the income, profits or gains were made first •^sable. The Income Tax Officer, after considering the return, raised the

unt of recorded sales from Rs. 1,12,243.00 to Rs. 2,00,000.00 vide order dated -1972. The applicant filed appeal against this order before the Income Tax ."e Tribunal, Lahore , on the ground that the assessment was barred by j accounts have been incorrectly rejected; the sales assessed at Rs. . ,30 were against the facts; the salaries Rs. 1,619/- had been impliedly d back; application of G.P. rate at the rate of 25% was excessive; the ,'enses should have been allowed in lull and that the penalty imposed was ajainst the facts. The Income Tax Appellate Tribunal, after hearing the applicant and perusing the material available before it, accepted the contention of the Tt>licant that the omission of purchase related to the accounting year ended on 7-1965 for which the relevant assessment year was 1965-66, and therefore, t ~se amounts could not be validly used for the year of appeal. The Tribunal in its order dated 10-12-1973 further observed as follows:- "......The rest of the objections are not disputed but we find that ,Qii identical defects the appellant's sales had been raised by maximum of 67% in the preceding years whereas in the year in appeal such enhancement is of the order of about 78%. These are "thus somewhat ' excessive and we reduce the same to Rs. 1,90,000/-". 2. The applicant filed the present application under Section 66 (1) of the Income Tax Act, 1922, and a number of questions were raised. It is, however, not necessary to deal with all the questions, in that, during the course of arguments Mr Ali Bin Abdul Kadir, abandoned all the points and confined his submissions to questions No.l and 4, which read as under:- 1. . Whether on the facts and the circumstances of the case the assessment for the accounting period from 1-8- 1965 to 30-6-1966 should have been made in the assessment year 1966-67 or 1967-68? In either case, whether the assessment as made is barred by limitation? 2. Whether a charge of tax on the income of the assessee for the period 1-8- 1965 to 30-6-1966 for the assessment year 1967-68 had been created in law, and such assessment could be legally made? 2. Mr Ali Bin Abdul Kadir, learned counsel for the applicant, contended that the applicant-firm was dissolved on 30-6-1966 and, therefore, the income which accrued to it during the year ending 30-6-1966, could not be Subjected to tax for the assessment year 1967-68. According to him, the assessment should have been made for the year 1966-67 for the period between 1-8- 1965 to 30-6-1966. 3. As to the above contention raised by learned counsel for the. applicant, the admitted position is that the Income Tax Officer had concluded the assessment for the year 1972 and period of four years had lapsed by that time The objection of limitation specifically pleaded by the assessee in the memo of appeal was not pressed before the Tribunal. It is not the case of the applicant that iht accounting period or any part of it had formed an integral part of the assessment Of the previous year. The return submitted by the assessee for the assessment year 1967-68 had to be processed according to law and the inclusion of the period which formed part of applicant's earlier return for the period between 1-8-1965 to 30-6-1966 was taken into account for the first time while passing the order dated 30-6-1972. Thus visualised, the question of limitation did not arise in these proceedings. . 4. It was further argued that no charge of tax is created under Section 3 of the Act to cover a period of less than twelve months and, therefore, the assessment for the year 1967-68 in the broken period of eleven months should not have been assessed under Section 2.5 of the Act. Replying to the contention. Mr Muhammad Ilyas, learned counsel for the respondent Department has referred f u the term "previous year" defined in clause (11) of Section 2 of the Act which reads thus:- "(11) "previous year" means — (i) in respect of any separate source of income, profit and gains - (a) the twelve months ending on the (thirtieth day of June) next preceding the year for which the assessment is to be made, or, if the accounts of the assessee have been made up to a date within the said twelve months in respect of a year ending on any date other than the said (thirtieth day of June), then at the option of the assessee, the year ending on the date to which his accounts have been so made up; Provided that where in respect of a particular source of income profits and gains an'assessee has once been assessed, or where in respect of a business, profession or vocation newly set up an assessee has exercised the option under sub-clause (c), he» shall not in respect of that source or, as the case may be, profession or vocation, exercise the option given by this sub-clause so as to vary the meaning of the expression "previous year" as then applicable to him except with the consent of Income-Tax Officer and upon such condition as the Income Tax Officer may think fit to impose; or (b) In- the case of any person, business, or company or class of persons, . business or company, such period as may be determined by the Central Board of Revenue or by such authority as the Board may authorise hi this behalf; or (c) where a business, profession or vocation has been newly set up in the financial year preceding the year for which the assessment is to be made, the period from the date of the setting up of the business or profession or vocation to the (thirtieth day of June) next following or to the hist day of the period determined under sub-clause (b), or, if the accounts of the assessee are made up in respect of a period not exceeding twelve months from the date of the setting up of the business, profession or vocation and the case is not one for which a period haS been determined under sub-clause (b), then at the option of the assessee, the period from the date of the setting up of the business, profession or vocation to the date to which his accounts have been so made up: Provided when the date to which the accounts have been so made up does not fall between' the setting up of the business, profession or vocation and the next following (thirtieth day of June) inclusive, it shall be deemed that there is no previous year for the said assessment year and the previous year which would otherwise have been determined according . to the option exercised by the assessee shall be deemed to be the previous year for the next succeeding assessment year; (ii) in respect of the share of the income, profits, and gains of a firm where the assessee is a partner in the firm and the firm has been assessed as such, the period as determined for the assessment of the income, profits and gains of the firm;". According to the learned counsel for the respondent, the use of the term "previous year" in Section 25 ibid should be treated as reference to the assessment year 1966-67. Viewed from this angle, it was argued that the assessment made by the Assistant Income Tax Officer on 30-6-1972 was not beyond time. 1 6. ' It is. common ground that the applicant firm was dissolved and discontinued its business from 30-6-1966. For such a situation the principle envisaged in Section 25 of the Act is applicable. It provides that where any business, profession or vocation is discontinued in any year, the Income Tax Officer can make assessment during that year for the period from the end of the previous year and the date of discontinuance of business. This provision contemplates a departure from the normal scheme of charge referred to by the charging Section 3 of the Act. It is true that the charge is always on the total income of the previous year, which can only be made after the close of that year, but Section 25 (1) of the Act is an exception to the general law. It permits an assessment in or before the expiry of previous year itself, in addition to the assessment of the income of previous year preceding the particular accounting year. The same view was taken in M/s Esso Easter Inc. v. Commissioner of Income Tax (1989 PTD 178), wherein it was observed that Section 25 (1) is a special provision and has been designed to meet a particular exigency, namely, in case of dissolution or stoppage of business which is the source of income in the middle of an accounting year. In C.I.T. v. Surinivasan and Gopalan (1958) 23 ITR 87 (CS), it was held that "all that the section authorises the Income Tax Officer to do is that it gives him an option to make a premature assessment on the profits earned upto the date of discontinuance in the year of discontinuance itself instead of in the usual financial year." H I. The upshot of the above discussion is that question No.l is answered in the negative and question No.4 in the affirmative. The reference stands answered accordingly. There shall be no order as to costs. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1993 Lahore 376 PLJ 1993 Lahore 376 Present: irshad hassan kHAN, J. MUHAMMAD ALI BHATTI ---- Petitioner versus PUNJAB LABOUR COURT No.l LAHORE, and 3 others —- Respondents Writ Petition No.2753 of 1975, dismissed on 26-4-1993 Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —-S.46-A read with Factories Act, 1934, Section 2(j)-Employees of Bhatti Tikka House-Lock-out of--Lock-out declared as illegal - Challenge to-Whether premises of petitioner were rightly treated as factory-Question of—Report of Assistant Director, Lahore Welfare shows that preparation of Tikkas has been taken to be manufacturing process and Tikka house as factory-In context of industrial and labour laws and Factories Act, 1934, "factory" means any premises and precincts thereof where a manufacturing process is being carried on or ordinarily carried on with or without aid of power-Held: Premises of petitioner were rightly treated as factory for purposes of Section 46-A of Ordinance—Held further: Impugned order being just and fair is not liable to be interfered with-, Petition dismissed. [Pp.378,379&380]A,B&C PLD 1985 SC 429, PLD 1976 Lahore 1097, and 1902 1 K.B.237 rel. PLD 1978 Lahore 965 not relevant. Mr. Muhammad Asghar Malik, Advocate for Petitioner. Nemo for Respondent Nos.l, 3 and 4. Date of hearing: 19-4-1993. JUDGMENT This petition under Article 199 of the Constitution of Islamic Republic of Pakistan calls in question the order dated 29-10-1975 passed by the Punjab Labour Courf. 1, whereby he directed the petitioner to call off the illegal lock out in respect of eleven workers referred to in the report of the Assistant Director (Conciliation), Labour, Lahore Region, Lahore. It was also ordered that the aforesaid workers be paid their benefits for the period they have been locked out. 2. Case of the petitioner is that no notice was issued before proceeding under Section 46-A (2) of the Industrial Relations Ordinance (No.XXIII of 1969) (hereinafter called the Ordinance), and no inquiry as contemplated by Section 46- A was carried.out. This plea has been specifically denied by respondent No.2 in his written statement wherein it was inter alia stated that the notice was duly served upon the petitioner after a date of hearing had been fixed by the Punjab Labour Court No.l. The inquiries were conducted at the spot by the Assistant Director (Conciliation), Labour Welfare, himself. It is stated that the petitioner was also afforded an opportunity of being heard by the Assistant Director, which was duly availed by him on 22-10-1975 when the conciliatory efforts conducted by him also failed in the presence of the Deputy Director (Conciliation). It is specifically pleaded in the written statement that the impugned proceedings were instituted by respondent No.2 in conformity with the requirements of Section 46-A of the Industrial Relations Ordinance^ • f%9. Thus visualised, a presumption of regularity, is attached to the impugned official acts taken by respondent No.2. Additionally, this disputed question of fact cannot be inquired into in these proceedings. The case of Star Textile Mills v. Third Sindh Labour Court Karachi and others (1973 PLC 376), is distinguishable and not applicable to the facts of the present case. In the precedent case, there were three separate registered Trade Unions in the Star Textile Mills Ltd. Karachi. One of the Unions was the Collective Bargaining Agent. Notice under Section 46-A (2) was issued only to C.ILA. to the exclusion of other Trade Unions. In these circumstances, it was neld that non-issuance of notices to other Trade Unions was not sufficient compliance with the provisions of Section 46-A (2) of the Ordinance. In the instant case, learned Presiding Officer of Punjab Labour Court No.l, Lahore, recorded statement of .the Assistant Director (Conciliation), Labour Welfare, in the presence of the petitioner and on receipt of the report of the reporting Officer under Section 46-A of the Ordinance, notice was issued to the management, as well as, to the worker s Union for 22-10-1975. The petitioner management failed to lead any evidence in rebuttal before the Labour Court and, therefore, it does not lie in their mouth to contend that no inquiry was conducted by the Assistant Director (Conciliation). After careful scrutiny of the material placed before the Punjab Labour Court No.l, Lahore, and providing an adequate opportunity of hearing to the parties, a finding of fact was recorded that workers of Bhatti Tikka House Jail Road, Mozang, Lahore, who are represented through their General Secretary Raja Muhammad Bashir, respondent No.3 herein, formed a Trade Union. The petitioner management got annoyed over it. The petitioner failed to pay the actual wages due to the workers and resorted to illegal strike in respect of eleven workers. Viewed from this angle, the impugned order is well reasoned and warrants no interference in these proceedings. 3. When faced with this, Mr Muhammad Asghar, learned counsel for the petitioner pleaded that the entire proceedings before the Assistant Director (Conciliation), Labour Welfare, were coram nan judice, in that, Section 46-A of the -Ordinance could be invoked by the Assistant Director Labour Welfare when there was illegal lock out in the factory and that the petitioner was not a factory. The term 'factor/ has not been defined in the Ordinance. The 'factor/ within the meaning of Section 2 clause (j) of the Factories Act, 1934, means:- "factory" means any premises, including the precincts thereof, whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on or is ordinarily carried on with or without the aid of power, but does not include a mine, subject to the operation of the Mines Act, 1923 (IV of 1923)". 4. The report received from the Assistant Director Labour Welfare shows that preparation of Tikkas has been taken to manufacture process and the Tikka House being a factory. The definition of the term "factory" as defined in the Factories Act, has not been expressly applied to the Ordinance for the purpose of Section 46-A of the Ordinance. But the use of expression 'Factory' in Section 46-A of the Ordinance is not in its ordinary dictionary meaning but in its popular and conventional meaning. In the context of industrial and labour laws in general and the Factories Act, 1934, the expression 'Factory means any premises (and) precincts thereof where a manufacturing process is being carried on or ordinarily carried on with or without the aid of power. The report of the Assistant Director, Labour Welfare, shows that the preparation of Tikkas has been taken to be a manufacturing process and, therefore, following the popular and conventional meaning of the expression 'Factory' the premises of the petitioner were rightly treated as factory for the purposes of Section 46-A of the Ordinance. This view finds support from the dictum of the Supreme Court in the case oiA.F.Fergusan & Co. V. The Sindli Labour Court and another (PLD 1985 S.C.429), wherein the ratio laid down in the case of KG.Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others (PLD 1976 Lahore 1097) was approved that the definition of industry as given in Section 2 (xiv) of the Ordinance and the words, namely, trade, business, manufacturing calling service, employment or occupation are not used in its ordinary dictionary meaning, but in its popular and functional meaning and the same are to be understood or interpreted not in their plain dictionary meaning but in the context of industrial and labour laws. In Collins, M.R.Wibnott v. Paton (1902 1 K.B. 237), it was held " it is not necessary to the definition of 'factory 5 that there should be machinery therein. 3. The case of Modem Tentage & Textile Industries Ltd. v. Punjab Labour Court No.l etc. (PLD 1978 Lahore 965), relied upon by learned counsel for the petitioner is of no avail. In the precedent case the order of the Labour Court under Section 46-A of the Ordinance was found to be without jurisdiction and without lawful authority on the ground that the factory of the petitioner therein fell .outside its territorial limits prescribed by the notification for Punjab Labour Court. No such point is involved in this petition. It was also held in the precedent case that on the basis of material placed before the court, that the management had failed to establish its contention that the premises at 14-Empress Road were not a factory. 4. Let me now deal with the case of Indus Dyeing & Manufacturing Company Workers' Union, Hyderabad and another V. The Government of the Province of Sindh (1975 PLC 858). In the precedent case, it was held that Section 46-A ibid was enacted to provide a machinery for expeditious and quick interference with strikes and lock-outs which are illegal. The Labour Court is to pass order within a short period of ten days as contemplated by sub-clause (3) of Section 46-A of the Ordinance, following the day on which it receives a report and, therefore, in conformity with the object of the section, the legislature instead of burdening the court with the function of securing the attendance of parties before commencement of the proceedings, has given powers to the officer of the Labour Department as specified in sub-clauses (9) and (10) ibid to call a party in his office or secure the attendance of the parties in the factory. No such point is involved in the instant case. 7. Mr. Asghar Malik, learned counsel for the petitioner finally contended that if even it is assumed that the Labour Court was justified in declaring the lock out as without lawful authority it had no jurisdiction to pass orders for granting benefits to the workers for the period they have been illegally locked out. The contention is devoid of any force. A finding of fact has been recorded by the g I,,abour Court that the lock out was illegal. The direction regarding payment of back benefits for the period the factory remained closed were consequential. Even otherwise, the impugned order being just and fair is not liable to be interfered with in the exercise of my discretionary constitutional jurisdiction under Article 199 of the Constitution. 8. The upshot of the whole discussion is that the premises of the petitioner establishment have been rightly treated as factory within the meaning of the Ordinance. The reasons assigned by the Punjab Labour Court in the impugned order-dated 27-10-1975 are just and fair. The writ petition, therefore, fails and is hereby dismissed, but there shall be no order as to costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 380 PLJ 1993 Lahore 380 Present: mian NAZIR AKHTAR, J. Mst. ZARINA — Petitioner versus ADDITIONAL DISTRICT JUDGE, J.HANG, and two others —- Respondents Writ Petition No.553 of 1992, accepted on 9-3-1993 Khula- '—-Dissolution of marriage-Suit for-Dismissal of-Challenge to—X7tM/a—Ground of-Petitioner appears to have developed fixed aversion against respondent No.3 which can be fairly gathered from her assertion before trial court that she might be killed but would not agree to live with respondent No.3--Mere fact that petitioner had failed to substantiate other issues relating to cruelty and levelling of false allegation of adultery against her, by respondent No.3, is not sufficient to disentitle her to grant of K7j«/a--Parties cannot live together amicably as husband and wife within limits of Allah—Held: Petitioner is entitled to a decree for dissolution of marriage on ground of K/mfa-Petition accepted and suit for 4 dissolution of marriage decreed on ground of Khuia. q-tia NLR 1990 SD 560,1981 CLC 343,1991 CLC 805 and 1980 CLC1212 rel. Cii. Muhammad Hassan Ahsan, Advocate for Petitioner. Nemo for Respondents 1 & 2. Mr. Muhammad Iqbal Sargana, Advocate for Respondent No.3. Date of hearing: 9-3-1993. JUDGMENT This, constitution petition has been filed to cail in question the judgments and decrees dated 8-10-1991 and 12-12-1991 passed by the learned Judge Family Court and the learned Addl: District Judge, respectively. Mst. Zarina, petitioner was married (somewhere in the year 1980) to Muhammad Bakhsh respondent No.3. They lived together for 4/5 years but remained issueless. Their relations became strained and respondent No.3 ailegedly gave beating to the petitioner and turned her out of the house, whereupon she filed a suit for dissolution of marriage on 28-5-1990, inter alia, on the ground of KJmla. Respondent No.3 also filed suit for restitution of conjugal rights on 10-6-1990. Both the suits were consolidated and after recording evidence of the parties the petitioner's suit was dismissed while the respondent's suit was decreed by the Judge Family Court vide judgment and decree dated .viO-199.1. The petitioner filed two appeals which were dismissed b> the appellate court vide judgment and decree dated 12-12-1991. It may be mentioned that the petitioner had earlier filed another suit for dissolution of marriage in 19S7 and the respondent filed a suit for restitution of conjugal rights, Both the suits were disposed of in 1988 on the basis of a compromise between the parties. Therefore, the petitioner lived with respondent No.3 for some time. 5. The petitioner's learned counsel contends that the petitioner had developed fixed aversion against respondent No.3 and was enuucu to dissolution ot marriage or, the ground ol ' Klutla. He further su' rv

if< that the courts below misread ihc j->iJ.iiu. on the record and drew wrong conclusions therefrom. In support of his contention^, he places reliance on (1) Muhammad Rafiq v. Mst. Surayyu Biln ac. (NJ.R 1990 S.D.560) Mst. Rashidan Bibi vs. Bashir Ahmad etc. (PLD 1983 Lahore 549), Shahid Javed vs. Saba Jabeen (1991 CLC 805). On the other hand respondent's learned counsel submits that the solitary statement of Mst. Zarina without eorroboration is not enough for grant of Klmla. He adds that the petitioner had failed to .substantiate other grounds relating to cruelty and levelling of false allegations of adultery by respondent No.3. Lastly he submits that the courts below have rightly held that the spouses can still live together amicably within the limits of Allah. 6. There is considerable force in the arguments raised by the petitioner's learned counsel. The petitioner appears to have developed fixed aversion against respondent No.3 which can be fairly gathered from her firm assertion before the trial court that >he might be killed but would not agree to live with respondent No.3. The petitioner had sought dissolution of marriage even earlier but then entered into a compromise with her husband and started living with him as his wife. However, again separation took place between the spouses which led to the institution of tho present suit. The mere, fact that the petitioner had failed to substantiate other issues relating to cruelty and levelling of false allegation of adultery against her by respondent No.3 is not sufficient to disentitle her to grant of Khula. The all important thing to be ascertained is whether there is an irremediable rift between the spouses due to fixed aversion on the part of the wife against her husband. In the present case the petitioner stated before the Family Court (in the examination-in-chief as well as in the cross-examination) that she might be killed but would not be prepared to live with respondent No.3 as his wife. This assertion speaks volumes of the innate hatred and fixed aversion on the part of the petitioner against her husband. For claiming Khula, a wife need not come out with logical, objective and sufficient reasons as held in the case of Muhammad Yaqoob vs. Shagufta Begum (1981 CLC 143). She is not required to give reasons amenable to an objective test for grant of Khula as held in the case of Abdur RaJiman vs. Judge, Family Court (1981 CLC 1968). Even if she fails to prove other grounds on which dissolution of marriage is claimed, she can still press her claim on the ground of Khula. This view finds support from the cases of Khurshid Ali vs. Mumtaz Begum (1980 CLC 1212), Muhammad Rafiq vs. Surraya Bibi (NLR 19950 S.D. 560) and Shahid Javed vs. Saba fabeen (1991 CLC 805). In the case of Mst. Rashidan Bibi, relied upon by the petitioner's learned counsel it was held:- "If a woman states that she would not live with her husband even if she was shot with a bullet and thereafter the reconciliation attempts by the Judge Family Court fail, in my view it is sufficient to satisfy the conscience of the Judge, Family Court that the two parties could certainly not live together within the limits prescribed by God and consequently in such circumstances the woman is entitled to get the marriage dissolved on the basis of Khula." I fully subscribe to and respectfully follow the view expressed in the above quoted judgment.' 4. The petitioner is living separately from her husband and no reconciliation could take place during the proceedings before the Family Court or thereafter during the pendency of the present writ petition. This further strengthens the view that there exists an irremediable rift between the spouses emanating from fixed aversion on the part of the petitioner against her husband. The parties cannot live together amicably as husband and wife within the limits of Allah. Hence' the petitioner is entitled to a decree for dissolution of marriage on the ground of Khula. There is no evidence to show that the petitioner had derived some benefits from respondent No.3 during her stay with him. The claim of respondent No.3 that while leaving his house the petitioner had taken away some ornaments, cash and clothes, even if true, cannot be equated with benefits received by the petitioner from the husband. Hence, no order need be passed'directing the petitioner to return the said articles to respondent No.3. 5. For the foregoing discussion, I accept this petition and declare the impugned judgments "and decrees of the .courts below to be without lawful authority and of no legal effect and decree the petitioner's suit for dissolution of marriage on the ground oiKhula. The parties are left to bear their own costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 385 PLJ 1993 Lahore 385 Present KHALID pal khwaja, J. Mst . RUKHSANA etc. -— Petitioners. versus MUHAMMAD ILYAS etc. -— Respondents. Civil Revision No.459 of 1992, dismissed on 25-4-1993. Civil Procedure Code, 1908(v of 1908)- —O.XXI R. 90-Auction of house-Objections against-Remand of case for disposal of objections—Challenge to—It is evident from Rule 90 that objection petition could only be entertained if, in compliance with direction of court, objection petitioner deposits an amount not exceeding 20% of auction money—In this case, trial Court had not issued any such direction to respondents—Held; In absence of such direction for deposit of amount, court could not justifiably reject objection petition for non-deposit of amount in question—Held further: Impugned order does not suffer from any infirmity, jurisdictional, or otherwise—Petition dismissed. ' [P.387 ]A &B 1981 CLC 369 ( Lahore ) and NLR 1978 Civil 590 ( Karachi ) DB rd. Sh . Abdur Rashid, Advocate for Petitioners. Syed Jamshed All and Syed MansoorAli Shah, Advocates for Respondents. Dates of hearing: 11-1 -1993, 27-3-1993 and 25-4-1993. JUDGMENT The relevant facts which gave rise to the present revision petition, in brief, are'that Mu

ammad Ilyas etc, respondents herein, instituted a suit against A/5C. Rukhsana etc the petitioners, for the partition and possession of a house situate in Gali Sard Khana , Jain Mandir Gujranwala . They claimed themselves to be the co-sharers in the said house to the extent of 5/12 share. They admitted that the remaining 7/12 share belonged to the petitioners/ On 25-9-1986 a preliminary decree was passed. The learned trial court then appointed a local commission to suggest the mode of partition. The Local Commissioner in his report dated 13-6- 1990 reported that the house in dispute was not divisible. He, however, assessed its market value as Rs . 1 ,40,000 /-. No objection was filed against the said report by any party. Consequently a Local Commissioner was appointed to put the house in question to auction and finally on 31-10-1990 the house was auctioned. It fetched a price of Rs '. 1 ,13,000 /-. The respondents filed an objection petition under Order XXI Rule 90 CPC against the auction proceedings on the ground that the proceedings were violative of Order XXI rule 67 CPC. They further contended that the house had been sold at a price which was far less than its market value, and that they had not been allowed to make a bid during the auction. They prayed for the reauction of the said house. The objection petition was resisted by the petitioners and the same was dismissed by the learned trial court vide order dated 22-12-1990 solely on the ground that the respondent had failed to deposit 20% of the auction price under Order XXI rule 90 CPC. Feeling aggrieved the respondents went up in appeal. Their appeal was allowed vide order dated 17-2-1992, the order under appeal was set aside and the case was remanded to the learned trial court with the direction to dispose of the objection petition afresh after framing necessary issues and affording the parties an opportunity to produce their respective evidence. Feeling dissatisfied the petitioners have come up in revision. 2. I have heard the parties' learned counsel and have also gone through the record. 3. Defending the order of the learned trial court the learned counsel for the petitioners submitted that under proviso 2 of rule 90 of Order XXI CPC it was obligatory for the objectionpetitioners /respondents herein, to deposit 20% of the auction money and as they had not deposited the said amount in court, the learned trial court was justified in dismissing the objection petition. Conversely, learned counsel for the respondents has defended the order of the learned lower appellate' court and has maintained that the objection petition could only be dismissed on account of the failure of the objection petitioner to deposit necessary amount if there had been an order of the court for the deposit of such amount. 4. • Rule. 90 ibid reads as follows: "Application to set aside (sale) on ground of irregularity or fraud. — Where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. Provided further that no such application shall be entertained unless the applicant deposits such amount not exceeding twenty per cent of the sum realised at the sale, or furnishes such security, as the Court may direct." 2. It ls evident from the above rule that an objection petition could only be entertained if. in compliance with the direction of the court, the objection petitioner deposits an amount not exceeding 20% of the auction money. The rule co-templates a direction from the court for the deposit of such amount prior to en :er.i:r.ini : :he objection petition. In the present case the learned trial court had nc »: issued inv such direction to the respondents and therefore, their objection petition could not be dismissed on the ground that they had failed to deposit the requisite amount contemplated in proviso 2 of Rule 90 ibid. A similar question had arisen in A/. Shafique Shah and another vs. Mst . Irshad Begum and 8 others (19S1 C.L.C 3c q i Lahore)) andAl Hamdi Begum vs. National Bank of Pakistan etc. (NLR 19"S Chil 590 (Karachi) D.B.) and it was held that it was obligatory for the execuiinfi court to specify the amount of deposit required to be made by the objection petitioners in terms of the second proviso to Rule 90 and in the absence of any such direction in that behalf the court could not justifiably reject the objection petition for non-deposit of the amount in question. The contention raised by the learned counsel for the petitioners, therefore, is devoid of force and does not have the support of law. Consequently the same is repelled. 3. In view of the above discussion the impugned order of the learned Add. N District Judge does not suffer from any infirmity, jurisdictional or otherwise, and therefore, this revision petition has no merit and is dismissed with costs. 4. (MBC) (Approved for reporting) Petition dismissed.

Mst Mst. GHULAM FATIMA —— Respondent Civil Tax Reference No.107 of 1986, decided on 26-4-1993 Income Tax Ordinance, 1979 (XXXI of 1979)- —-S.16(3) read with Section 136(l)-Partnership firm-Shareholder of-Death of~ Whether income of minor legal heirs of deceased partner could be clubbed in hands of his widow-Question of-Under Section 16(3) income of minor can only be assessed in hands of his parent if it was directly or indirectly derived from admission of minor to benefits of partnership-Section 16(3) (a) (ii) clearly postulates a voluntary act on part of minor or his parent admitting him to benefits of partnership of a firm, of which parent is a partner—Held: It does not appear to have any application to a situation where share in partnership devolves upon minor through inheritance—Question answered in affirmative and against Department. [Pp389&390]A&B PLD1965SC472re/. Cli. Muhammad Ishaq, Advocate for Petitioner. Nemo for Respondent. Date of hearing: 26-4-1993. JUDGMENT M. Mahboob Ahmad, CJ.~ The learned Income Tax Appellate Tribunal has referred to this Court the following question of law under Section 136(1) of the Income Tax Ordinance, 1979, for its opinion: "Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the income of the minor children could not be clubbed in the income of the assessee under Section 16 of the (now Repealed) Income Tax Act 1922"? 5. The necessary facts are tnat Muhammad Zaki deceased husband of Mst. Ghulam Fatima was partner holding 40% share in a partnership firm which was carrying on business under the name and style of M/S Muahmmad Shafi Shamshad Ahmad. Muhammad Zaki died on 17th October, 1970. His assets including the share in the partnership devolved upon his legal representatives, (his 3 minor daughters and his widow Mst. Ghulam Fatima respondent herein). The Income Tax Officer clubbed the income of the 3 minor daughters in the hand of their mother in view of Section 16 of the Income Tax Act, 1922. vide his order dated 18th May, 19">8. 6. Aggrieved by that order, the respondent went in appeal and succeeded before the Assistant Appellate Commissioner of Income Tax, who in his order dated 17th April, 1979, took the view that as the share in the partnership had devolved upon the legal representatives of the deceased under the Shariat Law of inheritance. Section 16 of the Income Tax Ordinance, 19 7 9, had no applicability. This order was maintained in appeal by the Income Tax Appellate Tribunal, on 29th September, 1974. The Commissioner of Income Tax, Faisalabad, thereupon made.an application under Section 136(1) of Income Tax Ordinance, 1979, requesting the learned Income Tax Appellate Tribunal to refer the question mentioned above to this Court lor its opinion, 7. We have heard the learned counsel for the petitioner. No one has appeared on behalf ol "lie respondent. 2. Learned counsel for the petitioner had contended that as the minors had been admitted to the benefit of the partnership, the Income Tax Officer was correct in clubbing their income in the hands of their mother Mst. Ghulam Fatima. In this connection, learned counsel relied upon two judgments from the Indian jurisdiction, namely, Commissioner of Income Tax, Madras vs. K.M.S.Lakshmanier (IX ITR 668) and H.C.Mehra vs. Commissioner of Income Tax, Bihar and Orissa (Tax (1966) 59 I.T.R. (Sh.N.) 16). 3. There is no dispute as regards the facts of the case, which are that originally Muhammad Zaki, the husband of Mst. Ghulam Fatima, respondent, and father of 3 minors held 40% share in the firm which devolved upon his legal heirs under the Islamic law of inheritance. 4. Section 16(3) of the Income Tax Ordinance, which is relevant for the present purposes reads as under: "In computing the total income of any individual for the purposes of assessment, there shall be included: (a) so much of the income of the spouse or minor child of such individual as arises directly or indirectly: - (i) from the membership of the spouse in a firm (of) which he or she is a partner; (ii) from the admission of the minor to the benefit of partnership in a firm of which such individual is a partner; (iii) from assets transferred directly or indirectly to the spouse otherwise than for adequate consideration or in connection with an agreement to live apart; or (iv) from assets transferred directly or indirectly to the minor child, not being a married daughter, by such individual otherwise than for adequate consideration; and". 8. A bare reading of this provision would show that income of a minor can only be assessed in the hands of his parent if it is shown that the said income was derived directly or indirectly from the admission of the minor to the benefits of a partnership firm of which his parent is also a partner. Clause (a) (ii) of Section 16(3) of the Income Tax Ordinance, 1979, clearly postulates a voluntary act on the part of the minor or his parent admitting him to the benefits of partnership of a firm of which the parent is a partner. It does not appear to have any application to a situation where share in partnership devolves upon the minor through inheritance as in that case the minor cannot be said to have been admitted to partnership within the meaning of the aforesaid provision. This aspect of the matter need not be dilated upon any further in view of the pronouncement of the I Supreme Court of Pakistan in Ttie Commissioner of Income Tax, Karachi vs. Mst. Kliatija Begum, Partner, Shakil Impex, Karachi (PLD 1965 SC 472). In the above case the object of enacting Section 16(3) of the Income Tax Act, 1922 has been discussed in detail. 9. As regards the reliance of the learned counsel on the two cases of Indian jurisdiction, suffice it to say that these cases are clearly distinguishable and would have no application where the inheritance devolves upon a Muslim under the Islamic Law of Inheritance. For the reasons aforesaid, the answer to the question referred to us is in the affirmative and against the department. No orders as to costs. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1993 Lahore 390 PLJ 1993 Lahore 390 Present: MALIK MUAHMMAD QAYYUM, J. Dr. MUHAMMAD LATIF Petitioner versus GOVERNMENT OF PUNJAB and 2 others Respondents Writ Peiition No.3620 of 1991, accepted on 27-4-1993 Allotment" —Government residence—Allotment to petitioner—Rescission of allotment order-Challenge to-Pctitioner working in BS 19 is entitled to "B" type accommodation in terms of Policy Letter of Government—Respondent being in BS IS, was entitled to "C" type accommodation and could not be allotted house in dispute-Held: Impugned order is liable to be struck down only on this ground- Held further: Impugned order is whimsical and arbitrary and appears to have been passed in colourable exercise of discretion—Petition accepted. [P.392]A,B & C PU 1991 Lahore 345 and PLD 1990 SC 1092 rel, Mr. M.M. Saced Baig, Advocate for Petitioner. Mr. Muhammad Baahir Mirza, Advocate for Respondent No.3. Nemo for Respondents No. 1 and 2. Date of hearing: 27-4-1993. JUDGMENT This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 presents a classic picture of highhandedness on the part of the executive authorities, even while dealing with its own employees. Dr. Muhammad Latif, petitioner herein, is an employee of Government of Punjab in BS-19 and is presently working as Project Director, Science Education Project, Lahore . He is residing in 3/4 rooms quarter allotted to him, though under the policy of the Government as reflected in its letter dated 21-1-1984, he was entitled to a'B'type residence. 5. On 22-10-1990, he was informed that house No.B-76, GOR-II, Bahawalpur House, Lahore (under construction) had been earmarked to him for allotment. Surprisingly, however, before he could occupy the house, the aforesaid order was rescinded on 20-3-1991 and the Additional Secretary in the Secretariat, Chief Minister Punjab communicated the desire of Chief Minister, Punjab that the said house be allotted to Mr. Javed Nisar Syed, Deputy Secretary to the Governor, respondent No.3, herein by cancelling the allotment from the name of the petitioner. 6. On 1st April, 1991, the petitioner represented against the cancellation of his allotment to the Chief Minister on various grounds inter alia that property No.B-76, GOR-II. Bahawalpur House, Lahore could not be allotted to respondent No.3 who is an employee in BS-18. This representation was accepted by the Chief Minister on 2-4-1991 and formal order of allotment was issued in his favour on 10- 4-1991. Strangely enough notwithstanding acceptance of the representation of the petitioner, respondent No.3 on 6-4^1992 without any allotment took possession of the property in question, without any allotment order. 7. It is unfortunate that on 15th April, 1991 yet another order was passed by the Chief Minister, superseding all his previous orders and allotting the property to respondent No.3. As regards petitioner, it was observed that he should be given some alternative accommodation according to his entitlement on first available basis. This order of the Ch'ief Minister dated 15th April, 1991 which was communicated to the petitioner on 25th April, 1991 has been assailed in this petition. 8. In the written statement filed by the respondents, none of these facts have been disputed. The entitlement of the petitioner to 'B' type accommodation has been admitted but it has been stated that it depends upon its availability. The factum of various orders passed from time to time have been admitted. The reason disclosed for cancellation of allotment from the name of the petitioner is that he was already occupying government accommodation. 7. Learned counsel for the petitioner, in support of this petition, has argued that the impugned order suffers from malice of law as well as of fact. He urged that allotment of the petitioner has been cancelled at the behest of respondent No.3 who was working as Deputy Secretary to the Governor of Punjab. It was emphasised that even in matters of discretion, the power vesting in public functionary must be exercised in a reasonable, fair and just manner and no person should be discriminated against. 8. No one has appeared for respondents No.l and 2. The learned counsel for respondent No.3 has been heard. f 9. There is no dispute that petitioner is presently working in BS-19 and was i as such entitled to 'B' type accommodation in terms of Policy Letter of the Government dated 21-1-1984. (Annexure-A). From the same letter, it is clear that | an employee in BS-18 is entitled to 'C' type residence. Consequently, according to i the policy of the Government itself, respondent No.3, being in BS-18 could not be allotted the house in question. The impugned order is, therefore, liable to be struck down only on this ground. 3. Be that as it may, there is also considerable merit in the contention of the learned counsel for the petitioner that petitioner has not been dealt with in a fair, just and lawful manner. Although it is correct that allotment of residence cannot be claimed as a mailer of right by.a Government servant but he is certainly entitled to be dealt wilh (in accordance with) law. By now it is well settled that in a fair, reasonable and unbiased manner. The Chief Minister, having himself once ccepted the representation filed by the petitioner on 2nd April, 1991 and restored the original allotment, could not subsequently pass any order, superseding all previous orders and lhat too, without disclosing any reason. To say the least, from the circumstances of the case, the conclusion which is inevitable is that the impugned order is whimsical and arbitrary and appears to have been passed in colourable exercise of discretion. Reference in this connection may be made to Aman Ullah Klian and others vs. The Federal Government of Pakistan, through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 S.C. 1092) and Ihsan Ullah Bcijwa vs. Chairman, City and Regional Planning Department and others (PLJ 1991 Lahore 345). 10. It is also to be noticed that the Chief Minister of Punjab while recalling his order on 15th April, 1991 directed that the petitioner be allotted some alternative accommodation according to his entitlement on first available basis. Unfortunately, this direction of the Chief Minister was not carried out or given effect to as is obvious from a copy of the allotment order dated 20-2-1991 which shows that 'B' type residence was allotted to another officer. For the reasons aforesaid, this petition is allowed; orders of respondents I dated 15th April, 1991 and 25th April, 1991 are declared to be unlawful and of no legal effect. Respondents are directed to allot 'B' type residence to the petitioner within one month from today failing which they shall deliver the possession of property No.B-76 GOR-11 Bahawalpur House, Lahore to the petitioner in terms of the allotment order issued in his favour. There shall be no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 393 (DB) PLJ 1993 Lahore 393 (DB) Present: M.MAHBOOB AHMAD, CJ AND MALIK MUHAMMAD QAYYUM, J M/S DEHKAN AGRO ASSISTANCE -— Appellant versus AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN, and 2 others ----- Respondents I.C.A. No.172 of 1993, dismissed on 4-5-1993 Law Reforms Ordinance, 1972 (XII of 1972)- —-S.3(2) read with Constitution of Pakistan, 1973, Article 199 and Code of Civil Procedure (Amendment) Ordinance, 1980, Section 15-Interlocutory order passed by Single Judge—Appeal against—Whether appeal is maintainable—Question of~ Main petition is still pending for adjudication—Section 3(2) of Ordinance ordains that no appeal shall lie from an interlocutory order or an order which does not dispose of entire case-Refusal to grant ad-interim relief cannot be equated with a final order-Appeal provided by Section 15 of Code of Civil Procedure (Amendment) Ordinance 1980, is subject to condition that interlocutory order should have been made in exercise of original civil jurisdiction of High Court- Held: Jurisdiction exercised by High Court under Article 199 of Constitution cannot be termed as its original civil jurisdiction and appeal is not maintainable- Appeal dismissed. [Pp.393,394 & 396]A,B,C,D,E & F PLD 1968 SC 171 and PLD 1980 Lahore 69 rel. 1990 MLD 2100 not relevant. Malik Waqar Salcem, Advocate for Appellant. Date of hearing: 4-5-1993. ORDER M. Mahboob Ahmad, CJ.-- This appeal under Section 3 of the Law Reforms Ordinance, 1972 calls in question an interim order passed by a learned Single Judge of this Court on 24th of April, 1993 in Civil Miscellaneous No.2 of 1993 in Writ Pelilion No.3983 of 1993. • 10. In the impugned order the learned Judge observed that notice in the interim relief had already been ordered by him on 20th April, 1993 and he saw no reason for modifying that order. It was further directed that the petition be listed for hearing as soon as the report was received. 11. As the main petition is still pending for adjudication in this Court the first question which arises is as to the maintainability of this intra court appeal in view of Section 3(2) of the Law Reforms Ordinance, 1972 which ordains that no appeal shall lie from any interlocutory order or an order which does not dispose of the entire case before the court. 2. In reply the learned counsel firstly attempted to argue that the order impugned through this appeal is in fact the final order in as much as refusal to grant interim relief would practically render the constitutional petition infructuous. This argument on the face of it hardly merits any consideration as by no stretch of imagination refusal to grant ad-interim relief can be equated with a final order. Be that as it may, sub-section (2) of Section 3 of the Law Reforms Ordinance, 1972 not only bars an appeal against interlocutory order but also against an order which does not dispose of the entire case before the court. Admittedly, the main constitutional petition as also the civil miscellaneous application filed by the applicant are still pending before the learned Single Judge and as such this appeal is squarely hit by mischief of sub-section (2) of Section 3 ibid. 3. It was next argued by the learned counsel for the appellant that this appeal is maintainable in view of Code of Civil Procedure Amendment) Ordinance, 1980, Section 15 of which provides for appeal against the interlocutory order passed by ihe learned Single Judge of this Court in the exercise of its original civil jurisdiction. 4. In support of his contention that the constitutional jurisdiction exercised by this court is its original civil jurisdiction, reliance was placed by the learned counsel on Subedar Muhammad Hussain vs. Shah Begiim and others reported as 1990 M.L.D. 2100. 5. We are afraid this contention of the learned counsel has no force. Section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 on which reliance has been made by the learned counsel to support the maintainability of his appeal reads as under:- "15. Appeal to High Court in certain cases- Notwithstanding anything contained in Section 3 of the Law Reforms Ordinance, 1972 (XII of 1972), an appeal shall lie to a Bench of two or more Judges of a High Court from an interlocutory order made by a Single Judge of that Court in the exercise of its original civil jurisdiction." 6. Although it is correct that by virtue of Section 15 aforesaid an appeal has been provided against an interlocutory order made by a learned Single Judge of the High Court but it is subject to the condition that the interlocutory order should have been made in the exercise of the original civil jurisdiction of the High Court. 7. We find ourselves unable to agree with the learned counsel that the constitutional jurisdiction exercised by this court under Article 199 of the Constitution of Islamic Republic of Pakistan is its "original civil jurisdiction." No detailed discussion on the subject is called for in view of the pronouncement of the Supreme Court of Pakistan in Ahmed KJian vs. Chief Justice and Judges of the High Court of West Pakistan through the Registrar High Court of West Pakistan, Lahore reported as P.L.D. 1968 S.C. 171 wherein it was held that:- " Speaking with great respect, the mere fact of a matter coming directly before the High Court under a law would not suffice to bring it within the ordinary original civil jurisdiction, however, frequent such occasions may be, if the words in clauses 12 and 13 of the relevant Letters Patent be given their full effect. The ordinary original civil jurisdiction was confined to the trial of suits arising within the local limits of that jurisdiction. The extraordinary original civil jurisdiction was given for the removal and trial of suits pending or falling within the jurisdiction of Courts subordinate to the High Court. Every other jurisdiction of a civil nature conferred by the Letters Patent would as contended by the learned Attorney-General, be best described as special jurisdiction or as statutory jurisdictions, since some of those jurisdictions were to be exercised under existing statutes. In the case of the Lahore High Court, there was no power to receive suits in the ordinary original civil jurisdiction, there being no provision in the relevant Letters Patent in that behalf. The Lahore High Court had testamentary and intestate jurisdiction to be exercised in accordance with law, and matrimonial jurisdiction exercisable under its own law. The jurisdiction of a general nature that it possessed was that conferred by clause 9 and described as extraordinary original jurisdiction, which was confined to power to remove and try suits pending before its subordinate Courts." 10. We^ may also refer to a judgment of the Division Bench of this Court in Eastern Company (Private) Ltd., Lahore and 2 others vs. Mst. Gul Begum and 7 others reported as PLD 1980 Lahore 69 comprising one of us (Mehboob Ahmed J.) and Shafi-ur-Rehman J. (as his lordship then was). After noticing various kinds of jurisdiction being exercised by the High Court and following Ahmed Khan's case supra, it was held that:- " It would not be out of place to mention here that the High Court in the present context of legislation has been invested with various types of jurisdictions. The jurisdiction conferred upon it under the Constitution is called the "Constitutional jurisdiction". The High Court has the "extraordinary civil jurisdiction" under which it transfers to itself for trial any case of civil nature pending before a subordinate Court. Then there is the jurisdiction of the High Court conferred under various statutes, for example, the jurisdiction under the Companies Act, under the Insurance Act and jurisdiction as was vested in it under Section 21 of the Displaced Persons (Land Settlement) Act, 1958. Such type of jurisdictions are termed as "statutory jurisdiction." 11. From the above it is obvious that the jurisdiction which is exercised by this court under Article 199 of the Constitution cannot be termed as its original civil jurisdiction but can more appropriately be called as its constitutional jurisdiction. 12, As regards the case of Subedar Muhammad Hussain vs. Shah Begum and others reported as 1990 M.L.D. 2100, it is to be noticed that the observations relied upon by the learned counsel for the petitioner are in the nature of obiter dicta. The dispute in that case was as to whether or not the revisional jurisdiction exercised by the High Court can be termed as its original civil jurisdiction so as to attract the application of Section 12(2) of the Code of Civil Procedure. The question as to whether or not constitutional jurisdiction exercised by this court is its original civil jurisdiction was not in issue in that case nor is there any detailed discussion on the subject. Be that as it may, it is evident that the attention of the learned Judges in that case was not drawn to the pronouncement of the Supreme Court of Pakistan in Ahmed Klian's case reported as P.L.D. 1968 S.C. 171, and the judgment of this court in Eastern Company's case supra. In view of the foregoing discussion we hold that the appeal is not maintainable and dismiss the same in limine. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 Lahore 369 [Rawalpindi Bench] PLJ 1993 Lahore 369 [ Rawalpindi Bench] Present: CH. MUSHTAQ AHMAD KHAN, J. WAPDA THROUGH ITS PROJECT DIRECTOR, GRID SYSTEM CONSTRUCTION, MULTAN —- Petitioner versus PAKISTAN ATOMIC ENERGY COMMISSION EMPLOYEES CO­ OPERATIVE HOUSING SOCIETY LTD., ISLAMABAD Respondent Civil Revision No.415 of 1992, accepted on 17-1-1993 Civil Procedure Code, 1908(V of 1908)- —-O.XXXIX Rr. 1 x 2 read with WAPDA Act, 1958, Section 14- Installation of poles and laying of overhead lines-Restraint order of~Challenge to~Admittedly project is of great public importance-It is an established principle of law that public good is to override individual interest-Case of respondent is that it is entitled to more compensation than assessed by petitioner-It is clear that 90% of work at site has been completed--In case stay order continues, public at large is going to suffer an irreparable loss-Held: Appellate court has illegally interfered with discretion exercised by trial court-Petition accepted and stay application of respondent dismissed. [Pp.371 & 372]A & B Mr. Muhammad Ashraf Sheikh, advocate for Petitioner. Mr. Muhammad Amin Jan, Advocate for Respondent. Date of hearing 17-1-1993 JUDGMENT Briefly stated facts of the case out of which this Civil Revision has arisen are that the petitioner, which is a body corporate has been delegated powers and assigned the functions to carry out the scheme of development by setting up poles/structures for 132 K.V. Transmission Line to supply electricity in the area. In pursuance of the performance of the aforementioned duty, the petitioner planned under the auspices of the Federal Government, to set up Grid Station at Rawat, and overhead Transmission Lines have been constructed for better supply of electricity in area. The Line is being set up to provide direct source of electricity from Tarbela to Rawalpindi and Islamabad, particularly to key points i.e. Presidency, Prime Minister House, Nelore and Kahuta Atomic Energy Projects, etc. The respondent instituted a suit for permanent injunction against the petitioner seeking restraint order from digging, constructing and affixing any pole in the land, which is claimed to be owned by him. Alongwith the plaint, a stay application has also been filed wherein ad-interim injunction was sought seeking a restraint order against the petitioner to install poles and laying overhead lines in his land. Grievance of the respondent is that without payment of compensation, petitioner is not entitled to instal poles and lay overhead lines in the land belonging to the respondent. Stay application has been contested by the petitioner and has been dismissed by the learned Civil Judge vide order dated 25-6-1992. This order was challenged in appeal by the respondent which has been accepted by the learned Additional District Judge, Rawalpindi vide order dated 8-8-1992, and a stay order has been issued that the petitioner shall not instal poles and lay overhead lines in the land belonging to the respondent. This order has been challenged by the petitioner in this Civil Revision. 2. Mr. Muhammad Ashraf Sheikh, learned Advocate has placed reliance on case Malik Haji Nazar Muhammad and another vs. Wapda and another (PLD 1991 S.C. 715) and Saleh Muhammad and others vs. Wapda and others (1988 CX.C. 2314);. and has argued that as per provisions of Section 14 of the Water and Power Development Authority Act, 1958, the petitioner is entitled to enter upon the disputed land and erect the pillars for laying electricity cable and that at no point of time, payment of compensation has been refused to the respondent, and, therefore, the project being of a public importance, no stay order could have been issued in favour of the respondent merely on the ground that the respondent shall be entitled to payment of compensation for use of his land. Learned counsel contends that in view of the above factual and legal position, the learned First Appellate Court has exercised its jurisdiction illegally and with material irregularity while granting stay order in this case. Elaborating his argument, learned counsel has argued that the poles have been installed upto and beyond the land in dispute and it is due to the stay order issued by the learned First Appellate Court that the drawing of line is suspended, and a project of a very great public importance is not being completed as a result whereof public at large is suffering an irreparable loss whereas in case the stay order is not granted, the respondent shall not suffer any irreparable loss as he can recover compensation whatever is found due to him. During the Course of the proceedings of this civil revision the petitioner was asked to determine the tentative compensation which will be payable to the respondent, learned counsel for the petitioner has today placed on record copy of the letter dated 14-12-1992 according to which an amount of compensation/damages has been assessed as Rs. 17,428/-, which learned counsel states that petitioner is ready to pay to the respondent immediately. The letter further shows that more than 90% work of T/Lines has already been completed and therefore, it is not possible to change the route on technical grounds. In view of the above, learned counsel states that neither the petitioner has a prima facie case for grant of interim stay nor the other two ingredients i.e. irreparable loss and the balance of inconvenience exist in favour of the grant of interim relief to the respondent, hence this Civil Revision is liable to be accepted and the impugned order is liable to be set-aside. 3 As against the above arguments, Mr. Muhammad Amin Jan, learned counsel for the respondent has argued that as per provisions of Section 14 of the Wapda Act referred to by the learned counsel for the petitioner, the respondent is entitled to grant of compensation and without payment of compensation, neither the poles could be installed nor the T/Lines can be laid. Learned counsel contends that the petitioner initially intended to lay 11 K.V. overhead T/Lines, but now has decided to lay 132 K.V. T/Lines, which shall result in great loss to the respondent. According to the learned counsel, due to over-head T/Lines, the land which is meant for construction of a Colony for Pakistan Atomic Energy Commission low paid employees, will not be in a position to be utilized for the said purpose and as a result whereof compensation is very low and is not acceptable to Lhe respondent. Learned counsel for the petitioner has, however, stated, that the compensation has been assessed tentatively and the petitioner is ready to pay whatever compensation is ultimately assessed and is payable to the respondent. 4. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Admittedly, the project for which the T/Lines is to be laid and the poles are installed is of great public importance. It is an established principle of law that public good is to over-ride the individual interest. Even the case of the respondent is that he is entitled to more compensation than assessed by the petitioner. Consequently, at the most the claim of the respondent is with regard to the payment of compensation, which relief can be granted to him even after the poles are installed and the line is completed. As is clear from the statement made by the learned counsel for the petitioner as well as the letter issued by WAPDA 90% work at site has been completed. The balance of inconvenience shall definitely be in favour of the respondent whose claim can be measured in terms of money. In case the stay order continues to remain in force, the public at large is going to suffer an irreparable loss. In exercise of the discretionary jurisdiction under the provisions of specific Relief Act', as well as the provisions of Order XXXIX Rules 1 & 2 C.P.C., no stay order should be granted, which interferes in the performance of public duties, merely for the reason that as a result of that act an individual will suffer a monetary loss which can be measured and compensated in the terms of money. Under the provisions of Section 14 of the WAPDA Act as interpreted in the judgments cited by the learned counsel for the petitioner, the petitioner is entitled to instal poles and lay T/Lines by entering upon a private land prior to the payment and determination of the payment of compensation. The only requirement is that the compensation is to be determined and paid to the owners of the land expeditiously.. 5. In view of the above, the learned First Appellate Court has illegally interfered with the discretion exercised by the learned trial Court, and, hence has exercised jurisdiction/discretion illegally and with material irregularity in an arbitrary and whimsical manner. Resultantly this revision petition is accepted, the order passed by First Appellate Court is, seUaside and the order passed by the learned Civil Judge is restored with the result that the stay application filed by the respondent is dismissed with no order as to costs. However, it is observed that the petitioner shall ensure that the compensation/damages, etc., the payment whereof the respondent is entitled to shall be determined and paid to the respondent not later than three months w.e.f. today. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 404 PLJ 1993 Lahore 404 Present: gul ZARIN KlANl, J. NAZIR AHMAD — Petitioner versus COMMISSIONER, GUJRANWALA DIVISION, and 2 others — Respondents Writ Petition No.5750 of 1993, dismissed on 12-6-1993 Transfer of Property Act, 1882 (IV of 1882)-- S.41-Evacuee land-Cancellation of land on account of claim being bogus-­ Subsequent vendee of same land—Whether protection under Section 41 of Act is available to subsequent vendee-Question of—Petitioner could not be termed as bonafide purchaser for value of land in dispute-Inaction of revenue authority to implement order of Chief Settlement Commissioner, cancelling verified claim of Rehmatullah and allotment of land made on its basis, could not sanctify and infuse life into non-existent acts-Long before sale of land in favour of Petitioner, Rehmatullah was divested of his entitlement—Held: Fraud and misrepresentation nullified whole basis and any structure built on it, must fall to ground and crumble to pieces-Petition dismissed. Mr. Allah Bakhsh Gondal, Advocate for Petitioner. Date of hearing: 12-6-1993. ORDER Rehmat was a claimant displaced person. He held a verified claim No.3210 for the land abandoned by him in India. On the basis of his verified claim, evacuee land situated in various revenue estates was allotted to him. 194 kanals, 19 marlas of agricultural land situate in revenue estate Bhoa Ehsan in Tehsil Phaiia of District Gujrat, was settled upon him at Khata No.69 RLII on 18- 1-1957, Depuly Commissioner, in exercise of his powers, as Chief Settlement Commissioner (Lands) Gujrat found his verified claim bogus, vide his order dated 24-6- 1969 and ordered cancellation of the allotments of land made in his favour. The cancellation of the claim as spurious document was upheld hi appeal/revision by Lahore High Court on 19-8-1969 and 21-1-1976. Copies of the orders made by the High Court were not annexed. Further, Nos. of appeal/revision were also not disclosed for tracing out the relevant records from the office of the High Court. However, it was not denied that the claim was cancelled and appeal/revision preferred from the order were dismissed. Despite cancellation of the verified claim, the order was not implemented hi revenue papers and the allotted land was recorded in the name of Rehmat Ullah. On his death, it was mutated in favour of his two daughters namely Kalsoom Begum and Zarina Begum. By mutation No.576, attested on 4-5-1991, aforesaid two women acting through an attorney sold the land in revenue estate Bhoa Ehsan to Na/.ir Ahmad, petitioner. One Malka alias Malku son of Sardara of revenue estate Bhoa Ehsan applied to the District Collector for correction of revenue records in line with the order made for cancellation of the claim and consequent allotments made on its basis. District Collector, vide his order dated 2-2-1993, directed implementation of the order dated 24-6-l%9 of the Chief Settlement Commissioner (Lands) Gujrat and review of mutations in all the concerned revenue estates. He also directed for assessment and recovery of arrears of rent from the illegal occupants of the resumed lands. Against his order, two revisions were filed before Commissioner, Gujranwala Division, Gujranwala . One revision was filed by daughters of Rehmat-Ullah addressed against District Collector, Gujrat and the other by Nazir Ahmad etc. directed against the s rme officer. Revision was dismissed in limine on 26-4-1993, by the learned Commissioner. Thereupon, a petition in constitutional jurisdiction was filed in this Court for quashment of the orders passed by lower revenue authorities. Facts were not disputed. It was not denied that verified claim of Rehmat-Ullah was found bogus and cancelled by the Deputy Commissioner, in exercise of his delegated powers as Chief Settlement Commissioner (Land) Gujrat under Sections 10, 11 of the Displaced Persons (Land Settlement) Act, 1958, since repealed. It was also not denied that the cancellation order was upheld and not Interfered with in appeal/revision by the High Court, though the copies of the orders were not disclosed. Sole question urged at the hearing for consideration of the Court was that the petitioner was a bonafide purchaser of the land for value without notice of any defect in the title of his sellers, and, therefore, was protected under the principle contained in Section 41 of the Transfer of Property Act, 1882. Apart from the above question, no other point was agitated. In my view, the point was wholly unsound. In Muhammad Yamin and others vs. Settlement Commissioner and others, 1976 SCMR 489 (decided on 1st March, 1974), Mst. Maryam Begum vs. Ch. Shah Muhammad and others, 1976 SCMR, 342, the Supreme Court found that principle in Section 41 of the Transfer of Property Act, 18S2 was. inapplicable. In Officer on Special Duty, Central Record Office and others vs. Bashir Ahmad and 9 others, 1977 SCMR 208, the principle contained in Section 41 was extended to the transfer by ostensible owners whose allotments were subsequently cancelled on the grounds of fraud or misrepresentation, on the ground that the transferees being not privy to fraud could not be penalised by cancellation of transfer. In Bashir Ahmad and others vs. Additional ommissioner with powers of Settlement Commissioner (L) and others, 1983 SCMR, 1199, upon review of earlier three cases noticed above, their lordships of the Supreme Court observed "Since an allotment of land is subject to the provision of Sections 10 and 11, every purchaser from an allottee is to be saddled with the knowledge that the transaction of purchase is subject to the incidence of those sections and as such he cannot raise the plea of protection on the principle of Section 41 of the Transfer of Property Act. His remedy is not against the Department but against the vendor. We are, therefore, inclined to hold that the view taken in the earlier two cited cases will govern the contention raised before us". Syed Iltaf Hussain Shall vs. Dr. Muhammad Din and others, PLD 1985 Lahore 380, followed the ruling of the Supreme Court in case of Bashir Ahmad (Supra) and found that principle of Section 41 of the Transfer of Property Act was inapplicable to the facts. In case of Manzoor Hussain vs. Fazal Hussain and others, 1984 SCMR 1027, the Supreme Court reiterated its view taken in 1983 SCMR 1199. Reham Din vs. Chief Settlement Commissioner and others, 1989 MLD 2823 (Lahore) expressed similar view on the inapplicability of Section 41 of the-Transfer of Property Act to the case of a purchaser from an allottee of the land, later found fraudulent and recalled on this score. Case of Muhammad Azeem KJian vs. Muhammad Amin, PSC 1987 page 1382 (Supreme Court of Pakistan), proceeded on distinguishable facts and did not alter the earlier view of the Supreme Court taken in this behalf. Therefore, the pctilioner could not be termed a bonafide purchaser for value of the land in dispute. In-action of the revenue authority to implement the order of Chief Settlement Commissioner, cancelling the verified claim of Rehmat Ullah and the allotment of land made on its basis could not sanctify and infuse life into the non-existant acts. Long long before the sale of land in favour of the petitioner, Rehmat Ullah was divested of his entitlement to hold the land. Since he himself did not hold its ownership, his successors could not confer better estate on the petitioner. Fraud and misrepresentation nullified the whole basis and any superstructure built on it must fall to the ground and crumble to pieces. No civilised law could sanctify fraud, forgery and fabrication for building up civil rights on them. In equitable jurisdiction, it shall not be apposite to protect the product of fraud and forgery. Upon this view, writ petition deserves to bo dismissed hi limine which I hereby do. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 407 PLJ 1993 Lahore 407 Present: IJAZ NlSAR, J. TAHIR MAHMOOD Petitioner versus INSPECTOR GENERAL OF POLICE, PUNJAB, LAHORE , and another Respondents Writ Petition No.8846-S of 1991, accepted on 22-2-1993 Promotion— -—Inspector of Police-Promotion to post of D.S.P.-Deferment of~Challenge to- -Since question involved in case is about petitioner's fitness or suitability for being considered for promotion, he cannot go to Service Tribunal and has rightly invoked writ jurisdiction-His supersession on ground of indifferent service record was not justified as this finding is not only vague but is stated to be factually incorrect—He has been treated discriminately vis-a-vis his other colleagues whose cases were considered alongwith him—Promotion is not a vested right but competent authority is under legal obligation to consider case firmly, justly and equitably in accordance with law-For determination of fitness of an employee, subsequent record not having attained finality, should not prejudice such assessment-Held: These principles were not kept in view in this case-Petition accepted. [Pp.409 & 410]A ,B & C Mr. Masood Ahmad Riaz, Advocate for Petitioner. Mr. Farooq Baidar, Addl. A.G. for Respondents. Date of hearing: 10-2-1993. JUDGMENT The relevant facts are that the case of Tahir Mahmood, Inspector police petitioner was placed before the Departmental Promotion Committee for promotion to the post of D.S.P. in the year 1987 and 1988 but he was deferred. His name was again placed before the D.P.C. on 23-11-1989 but he was ignored/superseded on the following grounds:- 1. Indifferent service record; and 2. Minor punishment of forfeiture of approved service. Lastly, his case was considered by the D.P.C. on 27-12-1990 but this time again he was superseded on the ground that he had been superseded in the last D.P.C. Meeting held in 1989 due to his indifferent service record and punishment of forfeiture of service as also for the reason that his service record was loaded with punishments, below average reports and adverse remarks about integrity. Consequently, in the impugned Notification dated 16-1-1991, the petitioner's name did not appear in the list of the Inspectors of Police who were promoted as Deputy Superintendents of Police. 2. The petitioner submitted a representation to the Governor Punjab but it was withheld by Inspector General of Police, Punjab, Lahore on the ground that he was not competent to prefer an appeal or representation to the Home Secretary or Governor under the Police Rules, 1934. Hence this writ petition challenging the notification dated 16-1-1991 and for modification of the orders dated 19-7-1991 and 13-8-1991. (a) It is contended that in terms of Section 8 of the Punjab Civil Servants Act, 1974, the post of D.S.P. is not a "Selection" post but a "Non-Selection" post and promotion had to be made on seniority-cum-fitness. The respondents, as such acted illegally in ignoring the petitioner who had good and satisfactory service record. It is further stated that the respondents have acted perversely in promoting other Inspectors having no better service record than the petitioner. Discriminatory treatment to the petitioner is also alleged. (b) The deferment of the petitioner's case in 1987 and 1988 without assigning any reason is challenged on the ground that since no inquiry was pending against him at that time and his service record was also complete, there was absolutely no reason to defer or postpone his promotion. As regards supersession in 1990 on the grounds of, (a) Indifferent service record; and (b) Minor punishment of forfeiture of approved service, it is contended that the finding of indifferent service record was not only vague but factually incorrect. In this context, reliance has been placed on Muhammad Ejaz vs. I.G.Police, Punjab etc. (1991 PLC 'C.S' 244), wherein it was held that indifferent record is too vague a term and has no legal basis. Likewise, the punishment of forfeiture of approved service could also not be taken into consideration, for, the petitioner's departmental representation was still pending and the punishment had not become final. It is further stated that minor punishment was not relevant or bar for the petitioner's promotion, due to him since 1987. In this respect, reliance has been placed on an un-reported judgment of this Court passed in Writ Petition No.3531 of 1990 tilled "C/j. Yar Muhammad vs. Govt. of the Punjab etc.", wherein it was held that minor penalty alone cannot furnish basis for declaring a Civil Servant un-fit for promotion. Policy letter dated 7-1-1969 has also been referred to by the learned counsel for the petitioner. It was notified in the said letter that in case the allegations, subject matter of inquiry were likely to end in a minor penalty, the inquiry should be ignored for promotion. The ground that the petitioner's service record was loaded with punishments and below average adverse entries on integrity is stated to be factually incorrect. No such entry exists in the petitioner's service record, it is added. As regards adverse remarks in the five months A.C.R. for the year 1983, it is submitted that they had not attained finality at the lime of the consideration of the petitioner's case for promotion and were later expunged under the orders of the Punjab Service Tribunal. 5. Learned counsel for the petitioner has also relied on a judgment of this Court passed in Writ Petition No.6839/90 titled "All Abbas vs. I.G. Police etc.", wherein it was held that punishments awarded subsequent to the due date of promotion are not relevant for the purpose of determination of the fitness of one's promotion. According to him, this view is based on Government policy circular letter dated 7-11-1984 as contained in the Establishment Manual, 1987 (Edition). 7. Mr. Farooq Baidar, learned Additional Advocate-General, Punjab has contested the petition. According to him, the petitioner's case was duly considered by the Departmental Promotion Committee and he was superseded/deferred for genuine reasons and he cannot invoke the jurisdiction of this Court and his remedy lies before the Punjab Service Tribunal. 8. In the report submitted by the Inspector General of Police, Punjab Lahore he has admitted that the adverse remarks recorded in the petitioner's A.C.R. for he period from 16-4-1983 to 4-9-1983 were expunged by the Punjab Service Tribunal vide order dated 24-9-1991 while the punishment of two years approved service was converted into a warning by the I.G.P. vide order dated 15- 10-1991. As regards the petitioner's adverse report for the period from 1-8-1990 to 31-12-1990 that his health, appearance, turn out and devotion to duty were below average, it is admitted that the Punjab Service Tribunal vide its order dated 27-11- 1991 passed on the appeal of the petitioner ordered as underimpugned adverse report for the period from 1-8-1990 to 31-12-1990 may not be used by the appropriate D.P.C. against the appellant for the purpose of considering the promotion to the post of D.S.P. till the decision of this appeal." 9. Since the question involved in the case is about the petitioner's fitness or suitability for being considered for promotion, the petitioner cannot go to the Punjab Service Tribunal. He has, therefore, rightly invoked the writ jurisdiction of this Court. Mitshtaq Hv.ssain Shah vs. Director, Food, Lahore Region and others (1990 S.C.M.R.1492) may be cited in this behalf, wherein it was held that the Service Tribunal cannot go into evidence to determine the fitness or otherwise of a civil servant for promotion. .The petitioner's supersession on the ground of indifferent service record was not justified as this finding is not only vague but stated to be factually incorrect, as well. Minor punishment of forfeiture of service could also not be used against the petitioner for not having attained finality. The minor penally of censure of 1981 shall be considered to have been wiped out due to the petitioner's confirmation in 1985. It is also an admitted fact that punishment of forfeiture of the petitioner's service was converted into a warning by I.G.P. vide order dated 15-10-1991. The petitioner has been treated discriminalcly visa- is his other colleagues whose cases were considered alongwith him. Although they had also been superseded earlier on the ground of having indifferent service record and awarding punishments of censure and forfeiture of approved service etc., beneficial views were taken in their respect. 3. It is true that no Civil Servant has vested right to promotion or to be appointed against a particular post, the competent authority is, however, under a legal obligation to consider his case fairly, justly and equitably and in accordance with law. It is also a settled proposition of law that for the determination of the fitness of an employee, his such service record should be considered as would have been up to the date of his promotion and that subsequent record not having attained finality should not prejudice such assessment. But in the present case, the afore-mentioned principles were not kept in view. 4. Consequently, the Writ Petition is accepted and the proceedings of the Departmental Promotion Committee ignoring the petitioner for promotion to the post of D.S.P. for the reasons mentioned by them are declared to be illegal and of no legal effect and are hereby set aside and the respondents are directed to again place his case before the Departmental Promotion Committee for a fresh decision on the quest-ion of his promotion as D.S.P. from the relevant date. It is hoped that this exercise will be undertaken at an early date. No order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 410 PLJ 1993 Lahore 410 Present: CH. MUSHTAQ AHMAD khan, J. MUHAMMAD NAWAZ -— Petitioner versus ADDITIONAL DISTRICT JUDGE, JHANG and 4 others ----- Respondents Writ Petition No.9964 of 1992, accepted on 7-4-1993 Additional Evidence Declaration-Suit for~Production of 40 years old sale-deed as additional evidence-Refusal of-Challcnge to-It is quite clear from statement of plaintiffs counsel that petitioner reserved his right to produce original sale-deed, copy whereof was appended with plaint—It was, thus, not a case where production of sale deed which was most relevant document, could have taken respondents with surprise-Petitioner cannot be said to be negligent or indolent-Law favours adjudication on merits and not on technical knock outs-Held: It was a fit case where a 40 years old registered sale deed which was most relevant documentary evidence of petitioner's title, should have been allowed to be produced by way of additional evidence-Petition accepted. rp p 4^2 & 4131A & B 1976SCMR35re/. Mr. Aftab Iqbal Chaudhty, Advocate for Petitioner. Mr. KJiizar KJian, Advocate for Respondents. Date of hearing: 7-4-1993. JUDGMENT Through this Constitutional petition Muhammad Nawaz petitioner, plaintiff, in a pending suit in the Court of learned Civil Judge 1st Class, Jhang, filed by him against respondents No.3 to 5 has challenged an order passed by the learned trial Court affirmed in revision whereby his application for production of registered sale deed by way of additional affirmative evidence has been refused. 10. Briefly stated facts of the case are that the petitioner filed a suit against respondents No.3 to 5 seeking declaration to the effect that the defendants have no right or interest in a plot mentioned in the plaint and that they should not interfere with his possession by dismentling floor and construction of water channels, etc. and using the same as public thoroughfare. This suit has been contested by the respondents. Evidence in affirmative was closed by the learned counsel for the petitioner on 5-12-1990. However, he did not produce in evidence a registered sale deed which is about 40 years old and which is the documentary evidence of his title regarding property in question. It was indicated, however, in the statement made by the learned counsel for the petitioner that he will produce evidence in rebuttal alongwith the documents. The case, therefore, was fixed for recording of evidence of the other side on 3-10-1991. When the evidence of the defendant had yet to commence on the said date, the petitioner filed an application for production of additional affirmative documentary evidence. The evidence of the defendants was, however, recorded. This application was contested by the respondents on the ground that the petitioner wants to prolong the litigation and having closed his evidence in affirmative, he was not entitled to produce the documentary evidence in affirmative. This application was dismissed by the learned trial Court vide order dated 13-11-1991. This order was challenged by the petitioner in revision before learned District Judge, Jhang which was dismissed on the ground that the application having been dismissed by the learned trial Court in exercise of his discretion, no interference impossible in revisional jurisdiction of the Court and that the registered sale deed dated 18-7-1942 cannot be allowed to be tendered in evidence. According to the learned District Court as no reason has been mentioned in the application for non production of the sale deed earlier to the filing of the application and as he has been proved to be; indolent, he cannot be allowed to produce registered sale deed by way of additional evidence. Plaintiff has challenged the said orders in this writ petition. 11. Learned counsel for the petitioner has argued that the law favours adjudication on merits and as it is a title suit, 40 years old registered sale deed which was relevant most piece of evidence and right to produce whereof had been reserved while closing the affirmative evidence, learned trial Court had no jurisdiction to refuse production of the sale deed by way of additional evidence. Learned counsel has further contended that mere delay in disposal of the suit is not a ground to refuse the application for production of additional evidence. Reliance has been placed by the learned counsel on case of Rehman Dad and another vs. Major Raja Sajawal KJian, etc. (1976 S.C.M.R. 350). 2. As against the above arguments, Mr. Khi/ar Khan, Advocate, learned counsel for the respondents has contended that the petitioner having closed his evidence in affirmative and having reserved right to produce documentary evidence in affirmative, he could not have applied for production of additional evidence. According to the learned counsel, the order passed by the learned two courts below is quite lawful and valid and intention of the petitioner is just to delay the proceedings in the learned trial Court inasmuch as evidence of the parties has since been recorded and the case is now ripe for final disposal. I have considered the arguments addressed by the learned counsel for the petitioners, statement of closing of evidence made by the learned counsel for the petitioner is reproduced as under:- From the above statement, it is quite clear that the learned counsel for the petitioner reserved his right to produce original sale deed. The sale deed sought to be produced in evidence has been mentioned to have been appended with the plaint as is clear from the list of documents, certified copy whereof has been appended as Annexure 'K' at page 42 of the paper book and a list of reliance, a copy whereof has been mentioned as Annexare 'L' at page 43 of the paper book. Consequently, it was not a case where production of registered sale deed which was the relevant most documentary evidence on the point of title could have taken the respondent with surprise. The defendant-respondent knew from the very beginning about the basis of the title of the plaintiff. In the statement of the learned counsel, it has clearly been stated that the document shall be produced. Consequently, it was not a case where the petitioner can be said to be negligent or indolent. Law favours adjudication on merits and not on technical knock outs. In such like cases, parties shall be given full opportunity to lead their evidence so that they may not feel that they have not been able to get fair and just trial of their case. Application for production of registered sale deed as additional evidence was made on the day when the evidence of the defendants had to commence, therefore, it was a fit case where a 40 years old registered sale deed which was the relevant most documentary evidence of title of the petitioner, should have been allowed to be produced by way of additional evidence. Merely because one or two more dates shall have to be fixed for disposal of the suit, is not a ground for refusal to allow production of documentary evidence of title in a title suit. It has been held in case of Rehman Dad and another, vs. Major Raja Sajawal Kfian, etc. (1976 S.C.M.R. 35) that delay in trial perse is not a ground to refuse production of additional evidence if it is necessary in the interest of justice. In the case in hand, it appears that the learned Courts below were not even conscious about the facts and even the existence of their jurisdiction and about the law declared by the Hon"ble Supreme Court of Pakistan in the said judgment and many other cases. Resultantly, I hold that the impugned order passed by the learned trial Court affirmed by the learned Additional District Judge is illegal and without a lawful authority and the same is, therefore, set-aside with the result that the petitioner is allowed to produce registered sale deed by way of additional evidence in affirmative. Respondents, however, shall also be given an opportunity to produce evidence in rebuttal if they so like. The suit shall be decided within a period of three months from the date a copy of this order is received by the trial Court. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 413 [Rawalpindi Bench] PLJ 1993 Lahore 413 [Rawalpindi Bench] Present: CH. MUSHT, & AHMAD khan, J. Mst. BHAGAN — Petitioner Versus MEHDI deceased represented by his L.Rs. — Respondents Civil Revision No. 1349-D of 1979, accepted on 12-4-1993 Finding of fact- —Declaration-Suit for-Suit decreed but decree set aside by appellate court- Challenge to-Entry No.16 in Nikah-nama reveals that two acres of land had been given to petitioner in lieu of dower at time of her marriage-Entries of Nikahnama have been corroborated by P.Ws.—Late Ghulam Muhammad, husband of Petitioner, had admitted in his statement in a case against him in 1971 that he had given two acres of land to petitioner in lieu of dower~It stands established beyond doubt that late Ghulam Muhammad had given two acres of land to petitioner in lieu of dower at time of marriage-There was no bar for him to subsequently specify khasra numbers given to her~Held: Judgment rendered by lower appellate court is based on surmises and conjectures and finding of trial court has been set aside without any lawful basis and justification—Petition accepted and judgment and decree of trial court restored. [Pp.415 & 416]A&B Mr. M.S. Mahboob, Advocate for Petitioner. Malik Muhammad Jaffar, Advocate for Respondents i to 4. Mr. Bashir Ahmad Ansari, Advocate for Respondent No.5. Date of hearing: 12-4-1993. JUDGMENT Mst. Bhagan petitioner before this court filed a suit against Mehdi deceased predecessor-in-interest of respondents No.l to 4 and Zaman Ali respondent No.5 seeking declaration of title in the land measuring 2 acres situated in village Dhoke Bigli which land was allegedly given to her at the time of her marriage in lieu of dower by her husband, and grant of decree for permanent injunction to the effect that the defendants should not interfere with possession of the property in question, was also prayed for. The suit has been contested by the defendants. 2. On the basis of pleadings of the parties, the learned trial Court settled the following issues: 4. Whether the suit is not maintainable in its present form? 5. Whether the suit has not been properly valued for purposes of court fee? 6. Whether defendant No.l is the legal heir of Ghulam Muhammad deceased? 1. If issue No.l is proved in affirmative. Whether Ghulam Muhammad deceased gave the suit land in dower to the plaintiff? 4. Relief: 3. After recording of evidence the trial court vide judgment and decree dated 21-10-1975 decreed the suit filed by the petitioner. This judgment and decree was challenged in appeal by the defendants which was accepted by the Addl: District Judge Rawalpindi vide judgment and decree dated 2-9-1979 (and) the suit filed by the petitioner has been dismissed. The main reason which found favour for setting aside of the finding rendered by the trial court on the question of giving of the land in lieu of dower is that khasra numbers of the land which was given at the time of nikah, were entered subsequent to the performance date of nikah and, therefore, it is not proved as to which land was given to the petitioner in lieu of the dower. Aggrieved of this judgment and decree, the petitioner has come up in this civil revision. 4. Mr. M.S. Mehboob Advocate has appeared on behalf of the petitioner whereas Malik Muhammad Jaffar Advocate has appeared on behalf of the respondents No.l to 4. Mr. Bashir Ahmad Ansari, Advocate has appeared on behalf of respondent No.5. 5. Learned counsel for the petitioner argued that the factum of giving of two acres of land in lieu of dower stands established from the certified copy of the original \ikahnama Ex.D3 and merely because the khasra numbers were added subsequent to the date oi nikah it cannot be said that the land in question was not given to the petitioner in lieu of dower, and that there is no bar for a husband to specify the land even subsequent to the date of nikah by making of entries in the Nikahnama subsequently. There is no legal bar in fixing and giving the landed property given or specifying in lieu of dower even after the date of marriage, therefore, finding of fact rendered by the trial court could not have been interfered with by the learned first appellate Court merely because for the reason that khasra numbers of the land given in lieu of dower were not mentioned in the part nikah on the date of marriage. 6. On the other hand learned counsel for the respondents have contended that as the detail of the land was not originally given in the part nikah, therefore, the suit could not have been decreed qua the land in dispute and, therefore, the judgment rendered by the trial Court has rightly been set aside by the learned first appellate Court. 7. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. There is an entry in the column No.16 of copy of Nikahnama Ex.3 that two acres of land had been given in lieu of dower at the time of marriage. During the course of recording of additional evidence by the learned first appellate Court Mansab Khan the Nikah Registrar has stated before the learned first appellate Court that khasra numbers of the land in question were added in the part nikah 5/6 days after the date of nikah at the behest of late Ghulam Muhammad. The entries of the Nikahnama have been corroborated by the statement of Shakir Khan and Saeed Ahmed PWl and PW2. ExJD2 is the copy of statement made by late Ghulam Muhammad recorded in the suit tided "Mst. Gohran vs. Ghulam Muhammad" decided on 17-3-1971 by the learned Civil Judge, Rawalpindi, wherein he has admitted that he had given two acres of land to the petitioner in lieu of dower at the time of marriage. This statement was made by the deceased much before the controversy had arisen and hence is a very strong piece of favourable evidence and, therefore, it stands established beyond doubt that the deceased Ghulam Muhammad did give land measuring 2 acres in lieu of dower to the petitioner at the time of nikah. There was no bar for him to have specified the land given at the time of marriage by khasra number subsequent to the date of nikah and this is what he did. There was also no bar to the making of entries of these khasra numbers in the part nikah if the entries were made with mutual consent of the parties. In the case in hand it is established by the statement of Nikah Registrar who has appeared as DW4 that Khasra numbers of the land in dispute were incorporated by him in the part nikah Ex.PW/1 at the behest of Ghulam Muhammad deceased subsequent to the date of marriage. Consequently Ihe learned trial Court has rightly held that the land in dispute was given to the petitioner in lieu of dower. The judgment at variance rendered by the lower appellate Court is based upon surmises and conjectures and finding of fact rendered by the trial Court has been set aside without any lawful basis and justification. Hence findings of fact rendered by the learned first appellate Court are set aside restoring the findings rendered by the learned trial Court, and it is held that the land in dispute was given to the peutioner in lieu of dower by Ghulam Muhammad deceased and-hence she is the owner thereof. Resultantly, this civil revision is accepted. The impugned judgment and decree at variance rendered by the learned first appellate Court is set aside and the judgment and decree rendered by the trial Court is restored. The suit of the petitioner shall stand decreed with costs throughout. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 416 PLJ 1993 Lahore 416 Present: SlIEIKH ABDUL MANAN, J. ABDUL KARIM — Petitioner versus MEMBER, BAORD OF REVENUE, PUNJAB, LAHORE, and 2 others — Respondents Writ Petition No.4234 of 1993, dismissed on 19-5-1993 Lambardar- — Lambardar-Appomlmcnt of-Challcnge to~Deputy Commissioner/Collector did not deal with matter in accordance with Rule 19 of West Pakistan Land Revenue Rules, 1968, governing facts of this case-He failed to state any cogent reason eliminating respondent No.3 and based his dicision on conmmunity basis which has been clarified by Member, Board of Revenue—Appointment of Lambardar can only be interfered if there is any jurisdictional error-Held: There is no legal infirmity or jurisdictional error in orders appointing respondent No.3 as Lambardar of village in question-Petition dismissed. [Pp.418&419]A,B&C PLD 1991 SC 531 rel. Malik Abdus Sattar Cliaiightai, Advocate for Petitioner. Date of hearing: 27-4-1993. 1993 abdul karim v. member board of revenue punjab Lah. 417 (Sheikh Abdul Manan, f) ORDER This constitutional petition is directed against order dated 12-4-1993 of the Member (Revenue) Board of Revenue Lahore, confirming the appointment of respondent No.3 Muhammad Bashir Alam as lambardar, in exercise of his revisional jurisdiction. 5. Briefly stated that Dost Muhammad lambardar of village Jal Janubi Tehsil and Distt. Mianwali died and applications were invited to fill in the vacancy and Muahmmad Iqbal and others applied for the appointment in question. Respondent No.3 was also one of the applicants. The D.C/ Collector Mianwali vide his order dated 12-5-1991 appointed the petitioner, Abdul Karim, as lambardar but this order was set aside in appeal by the Commissioner Sargodha Division vide his order dated 21-7-1991 appointing respondent No.3 as lambardar in place of the deceased Dost Muhammad. This order was further confirmed by the Member (Revenue) Board of Revenue on 12-4-1993. 6. Learned Commissioner and Member Board of Revenue selected respondent No.3 for the appointment as lambardar mainly on the ground that he was the real brother of deceased Dost Muhammad and according to rule of primogentiture he was entitled to this vacancy. In para 3 of the order passed by learned Member Board of Revenue it has been held as under:- "The observance of rule of primogeniture has been relied and sanctified through numerous decisions of the revenue authorities/High Court and by the Supreme Court of Pakistan and as such it is preposterous to suggest that it can be disregarded while appointing the lambardar," Another factor taken note in favour of respondent was his retirement on 20-6-1992 as a public servant. Order of learned Commissioner accepting the appeal of respondent is also on the same lines as that of the Member Board of Revenue who extensively dealt with the matter as to which of the persons was to be appointed as lambardar. An allegation was made against the present respondent as to his involvement in a case u/Ss 10 & 11 of Offences of Zina (Enforcement of Hadood) Ordinance 1979 and learned Appellate Court in para 5 of the order dealt with this issue in the following manner:- "It is conceded that he (respondent) is not the main accused in this case. This sort of allegation is levelled against all the kith and kin of the abductor. Moreover, the lady i.e. Samina Jabeen regarding whose abduction the case was registered, has moved the Family Court wherein she has claimed that she was not abducted and that she was the real wife of the abductor i.e. Muhammad Iqbal. The trial court is stated to have stayed the proceedings till the decision by the Family Court. These facts indicate some other story but the fact remains that there is no conviction on record against Muhammad Bashir Alam. In case of conviction, he can always be removed from the post of lambardar." Regarding present petitioner, learned Commissioner observed as under:- "Incidently Abdul Karim respondent is also involved in a case under FIR No.215 dated 25-5-1991 with Police Station City Mianwali wherein the allegation is that he has sold the land on the basis of bogus power of attorney." Both the tribunals deciding in favour of respondent were of the view that respondent being the real brother of deceased had a preferential right to claim appointment on the basis of his hereditary claim. It is in para 4 of the impugned order of Member Board of Revenue that "the matter hi hand deals with the succession of deceased lambardar and will have to be decided under the over riding rule of primogeniture which is in its character mandatory and not discretionary. Since the previous lambardar died issueless, the respondent being his real brother was nearer in degree as compared to the petitioner. He has therefore an edge over the petitioner in respect of hereditary claim. I am also of the view that community is to be taken into account and not the sub-castes. There is also no bar against the appointment of Government servant as lambardar." 2. If compared the initial order of D.C/Collector with that of two orders hi favour of respondent it is manifestly clear that the former has not dealt with the matter in accordance with rule 19 governing the facts of present case. It is for this reason that learned Commissioner in para 3 of his order observed that "it has been held that the appointment to the office caused vacant due to the death of lambardar is to be made according to the rule of primogeniture. Such appointment cannot be thrown open unless no eligible heir was available." The D.C./Collector failed to state any cogent reason eliminating the respondent and based his decision on community basis which too has been clarified by the Member Board of Revenue as noted above. 3. Learned counsel for petitioner has relied upon PLR 1918 page 405 "Chaudhri Mashir All vs. Malik Chiragh Khan," PLD 1950 Punjab (Rev)1247 "Bakhshish Singh vs. Tara Singh", PLD 1964 W.P. (Rev) 20 "Patch KJian vs. Muhammad Iqbal," PLD 1964 W.P. (Rev) 26 "Malik Abdus Saltar vs. Abdul Ghafoor", 1987 MLD 2269 "Nazir Ahmad vs. Roshan Din" and PLD 1964 (Rev) 19 "Fateh KJian vs. Muhammad Iqbal" to contend that petitioner gets preference over the respondent and, therefore, orders of Commissioner and that of the Member Board of Revenue may be set aside. 4. I find that there is no force in the contention of learned counsel. The matter has.been finally decided in PLD 1991 S.C. 531 "Haji NoorwarJan vs. Senior Member Board of Revenue N.W.F.P. Peshawar" where the appointment of Lambardar could only be interfered if there was any jurisdictional error. In the precedent case the 'Member Board of Revenue dealt with the appointment of lambardar under rule 17 instead of 19(2-b) of the Land Revenue Rules and the case was remanded. It was ruled that "the selection of the lambardar is the executive responsibility of the Revenue Officers with the Board of Revenue at the apex." 7. I have gone through all the orders of lower tribunals and find no legal infirmity or jurisdictional error appointing the respondent as lambardar of the village in question. Resultantly, there is no merit in the writ petition which is dismissed in limine. C.M. No.1002-93 for stay is also dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 419 PLJ 1993 Lahore 419 Present: GUL ZARIN KlANI, J. MUHAMMAD ISHAQ and 2 others — Petitioners versus DISTRICT JUDGE, SARGODHA, and 3 others — Respondents Writ Petition No.11973 of 1992, accepted on 20-4-1993 Punjab Pre-emption Act, 1991 (IX of 1991)- —-S.35 read with Section 6-Pre-emption—Suit for~Dismissal of suit on ground that no decree could be passed after target date-Revival of suit-Challenge to— Under Section 35(1), pre-emption suits instituted or pending between 1-8-1986 and 28-3-1990 and dismissed, could be revived on application in case right of pre­ emption claimed therein, was available under new Act-Revival is subjected to Section 35(2) regarding period of limitation and preformance of Talab-e-Ishhad— Plaint in this case, has no indication about Zaroorat or Zarar envisaged in Section 6(2) of Act-Held: Without amendment of plaint for incorporation of a statement about Zaroorat or avoidance of Zarar in it, suit could not be revivcd-Petition accepted and order of trial court dismissing revival application restored. [Pp.420 & 421JA & B 1992 MLD 1207,1993 CLC 85 and 1992 MLD 1879 rel. Mr. Muhammad Shahzad Shaukat, Advocate for Petitioners. Rana LiaqatAli Klian, Advocate for Respondents 2 to 4. Date of hearing: 20-4-1993. JUDGMENT Ninety two kanals of agricultural land situate in Chak No.30/Janubi of tehsil Sargodha belonged to Mst. Rashida Begum and two others. By deed registered on 15-1-1989, they sold it in favour of the petitioners for a sum of Rs.6,00,000/-. Respondents No.2 to 4 claimed pre-emption in respect of the above sale and brought a pre-emption suit for it on 11-2-1989. Superior right of pre­ emption was asserted on the ground of being co-owners and participators in amenities. On 31-7-1990, the pre-emption suit was dismissed in the trial Court on the ground that decree in it could not be passed. No appeal or revision was taken from the dismissal of the suit. Consequently, it attained finality under the law. On 4-10-1990, respondents No.2 to 4 brought a miscellaneous petition under Section 36 of Punjab Pre-emption Ordinance, 1990 for resurrection of the pre-emption suit for its trial on merits hi accordance with law. Petitioners contested the application. By decision dated 11-7-1991, civil miscellaneous was dismissed by the trial Court. Respondents No.2 to 4 preferred a revision.to learned District Judge, Sargodha . By his order passed on 30-11-1992, revision was allowed and the pre-emption suit after its revival was remanded to the trial Court for its decision on merits. Conclusion of the impugned order is summed up in its para 5. It reads, "In view of the above discussion, I admit the revision, set-aside the impugned order and allow the application moved under Sections 35 & 36 of the Pre-emption Ordinances and Act and restore the pre-emption suit filed by the plaintiffs/petitioners and remand it to the court of Mr. Zaheer-ud-Din, Civil Judge 1st Class, Sargodha ." This decision was questioned in extra-ordinary jurisdiction of this Court by the petitioners. On 21-12-1992, their petition was admitted to hearing and further proceedings before the trial Court were stayed. In terms of sub-section (1) of Section 35 of Punjab Pre-emption Act, 1991 (Act IX of 1991) pre-emption suits instituted or pending between 1-8-1986 and 28- 3-1990 and dismissed could be revived on an application moved within sixty days of the commencement of the above Act, in case the right of pre-emption claimed in those suits was available under the new Act. Revival in sub-section (1) was subjected to sub-section (2) of Section 35 regarding period of limitation and the performance of 'Talab-c-Ishhad'. A glance at the plaint of the pre-emption suit would sufficiently indicate a reference to the performance of rituals of Talabs but it gave no indication of 'Zaroorat' or avoidance of 'Zarar' in it. The plaint was silent on this score. In fact, there was no averment whatsoever, regarding 'Zaroorat' or avoidance of 'Zarar' in the plaint of the pre-emption suit. Section 6(2) of Act IX of 1991 provided that right of pre-emption shall be exercisable only in case of 'Zaroorat' or to avoid 'Zarar'. This was notwithstanding the statement of qualifications for pre-emption enumerated in sub-section (1) of Section 6 of the Act. Language of sub-section (2) was imperative. In Muhammad Iltaf vs. Muhammad Nawaz- 1992 M.L.D 1207, Fazal Ellahi and 2 others vs. District Judge, Attack and 3 others-1993 C.L.C. 85,1 had an occasion to express on the fulfilment of imperative requirements of sub-section (2) of Section 6 in the plaint of a pre­ emption suit. I took the view that omission of a clear statement about 'Zaroorat' or avoidance of 'Zarar' for claiming pre-emption was fatal to the suit. This view was upheld in the Supreme Court. My learned brother Munir A. Sheikh, J. in case ofFalak Shervs. Muhammad Mimitaz and 2 others-1992 M.L.D. 1879 subscribed to similar view. As a necessary corollary of the above line of thinking in the Court, it was evident that the plaint of the pre-emption suit in its existing form could not qualify for success under the new law of pre-emption. Without amendment to the plaint for incorporation of a statement about 'Zaroorat' or avoidance of 'Zarar 1 in it, revival of the suit could not take place. I am afraid, amendment towards the above end for ordering revival of the dismissed pre-emption suit was open to grave doubts. If the revival of the dismissed pre-emption suit was valid in stirct compliance with the saving clause in Section 35 of Punjab Pre-emption Act, 1991, subsequent amendment to the plaint was in the discretion of the Court. But for resurrection of a dismissed pre-emption suit for its retrial on merits, in my opinion, existing plaint alone was to be looked at without importing any foreign material into it. When the matter was looked at in this perspective, I could not persuade myself to agree with the learned District Judge for upholding his view. I would, accordingly accept the petition, set-aside the impugned order and restore the order passed by the trial Court dismissing the revival application with no order as to costs regarding this litigation in all the Courts. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 421 PLJ 1993 Lahore 421 Present: Si I. ABDUL MANAN, J. FATEH MUHAMMAD — Petitioner Versus ADMINISTRATOR, T.D A. and others —- Respondents Writ Petition No.1743 of 1975 (also W.P.Nos.2857,2858, 2982,2984, 3085 and 3209 of 1975) accepted on 28-4-1993 Thai Development Authority Act, 1949 (Pb. Act XV of 1949)- —S.74-A--Well sinking and lube-well sinking-Scheme of—Allotment of land under Scheme-Cancellation of allotment-Suit against-Whether civil court had no jurisdiction-Question of-It was duty of respondent to fulfil terms and conditions regarding trial boring in case Rs.100/- had been paid, and land could only be cancelled if there was any violation of any terms and conditions on which land was allotted-IIeld: Trial court had jurisdiction to pass judgment and decree and appellate court could not have, in law, set aside same for lack of jurisdiction- Petitions accepted and cases remanded for re-hearing of appeals. [Pp.422 & 423JA & B PLD 1978 Lahore 867, 1979 CLC (Lah) 456,1979 CLC (Lah.) 585,1988 CLC (Lah.) 119, PLD 1972 SC 279, PLD 1973 SC 49, PLD 1974 SC 151, PLD 1983 SC 457 and PLJ 1988 SC 629 rel. Syed ZainulAbidin, Advocate for Petitioner. Mr. Farooq Bedar, Addl. A.G. for Respondent No.l. Djte of hearing: 28-4-1993. JUDGMENT This constitutional petition is directed against the judgment dated 5-7- 1975 of the learned District Judge, Mianwali, whereby he accepted the appeal of the respondent and vacated the judgment and decree of the learned Civil Judge, Bhakkar dated 27-11-1974. This judgment will dispose of W.Ps.No.1743, 2857, 2858, 2982, 2984, 3085 and 3209 of 1975 where common question of law and fact is involved. 2. Briefly, the facts of the case are that by Notification No.l486-C of 31st October, 1952, the Resettlement and Colonies Department, framed a scheme, namely, well-sinking and tubewcll sinking, in Thai Projecting Colony, under T.DA. Act 1949. In prusuance of this" the petitioner was allotted lot No.252, measuring 1200- Kanals situated in Rakh Hyderabad Tehsil Bhakkar and the possession was delivered to him accordingly on 1-10-1953 and the petitioner deposited Rs.1350/- including Rs.100/- for trial boring of tubewcll. No trial boring was conducted by the respondent for which a sum of Rs.100/- was paid and therefore the petitioner of his own installed the tubewell and cultivated the land and the same is still in cultivating possession of the petitioner uptil now. 3. It is contended by the learned counsel for the petitioner that without any hearing and notice and without determination of the conditions of the scheme, the disputed land was cancelled from the name of the petitioner. Thereafter the petitioner filed a civil suit for perpetual injunction restraining the respondent to interfere with the possession and cultivation of the land allotted to him and after framing of issues and recording of evidence the learned Civil Judge vide his judgment dated 27-11-1974 decreed the suit. The respondent filed an appeal and the same was accepted by judgment dated 5-7-1975 of the learned District Judge, Mianwali on the ground of lack of jurisdiction by virtue of assertion of Section 74-A in the Punjab Act XV of 1949. This amendment was inserted on 6th June, 1975. The operative part of the judgment dated 5-7-1975 is as hereunder:- "In the light of the arguments advanced by the learned counsel, I am of the opinion that in view of the Ordinance, referred to above, the jurisdiction of the Civil Court is barred to entertain and decide the instant case and such like cases and that the ultra vires of the Ordinance can be looked into only by the High Court and the Supreme Court." 4. I have heard the learned counsel for the petitioner and Mr. Farooq Bedar, Addl. Advocate General. The main contention of the learned counsel for the petitioner is that the question of jurisdiction has wrongly been decided by the learned Appellate Court. Reliance is placed on 'BarkatAli vs. Administrator, Thai Development, Bakkar' (PLD 1978 Lahore 867), Muhammad Akbar vs. Thai Development Authority' (1979 CLC, Lah.456) 'Ch. All Muhammad vs. The Administrator, Tlial Bhakkar, District. Mianwali and 3 others' (1979 CLC Lahore 585) and 'Ham Din and 2 others vs. TJie Administrator Thai, Bhakkar' (1988 CLC Lahore 119), which are directly applicable to the legal proposition convassed by the learned counsel for the petitioner. Reliance is also placed on "Die Murree Brewery Co.Ltd. vs. Pakistan through Secretary to Govt. of Pakistan, Works Division and 2 others' (PLD 1972 S.C. 279), "Tlie State vs. Zia-ur-Rehman and others' (PLD 1973 S.C. 49), 'Federation of Pakistan vs. Saeed Ahmed Khan (PLD 1974 S.C. 151), 'Fauji Foundation vs. Shamim ur Rehman (PLD 1983 S.C. 457) and 'Federation of Pakistan vs. Ghulam Mustafa Khar' (PLJ 1988 S.C. 629) to show that when an order is passed without jurisdiction the same can be corrected in the exercise of writ jurisdiction. Lastly the petitioner has also filed a copy of D.B. decision dated 13-7-1966 in Writ Petition No.610 of 1958 to show that it was the duty of the respondent to fulfil the terms and conditions regarding trial boring in case Rs.100/- had been paid and that the land allotted to the petitioner could only be cancelled if there was any violation of any terms and conditions on which the land was granted. 5. The ratio dccidcndi of the aforementioned judgments unmistakenably show tfyat the trial court had the jurisdiction to pass the judgment and decree and therefore, the appellate court could not have in law, set aside the same for lack of jurisdiction. The contention raised by the learned counsel for the petitioner is well based on the settled law and therefore the judgment and decree of the learned District Judge is declared without lawful authority and it is directed that the appellate authority will re-hear the appeals in accordance with law. In view of above, the writ petition is accepted with no order as to costs. (MBC) (Approved for reporting) Petitions accepted.

PLJ 1993 Lahore 423 PLJ 1993 Lahore 423 Present: FAZAL KARIM, J. NAWAB DIN and 2 others — Appellants Versus ISMAIL (deceased) through his L.Rs. — Respondents R.S.A.No.381 of 1970, accepted on 6-4-1993 Pre-emption- —Pre-emption-Suit for-Dismissal of suit-Appellate court decreeing suit-­ Challenge to-Plaintiff must retain his preferential right of pre-emption at elate of sale, at date of suit and at date of decree-Held: Plaintiff had lost his right of pre­emption as a result of consolidation of holdings and was not a co-owner of new land at date of suit as also at date of decree, therefore, he was not entitled to pre­empt sale--Appeal accepted and judgment of trial court restored. [P.426]A&B PLD 1967 Lahore 1171 not applicable. PLJ 1991 SC 522/«/. Mr. Iftikhar Ahmad Dar, and Mr. Ahmad Din Farooq, Advocate for Appellants. Mr. Masood Mina, Advocate for Respondents. Date of hearing:6-4-1993. JUDGMENT The facts leading to this second appeal by the vendee defendants in a pre­emption suit are as follows: 2. The land in suit measures 7 Kanals 19 Marias; it was 5/16 share of land measuring 25 Kanals 9 Marias comprising Khewat No.48 according to the Jamabandi for the year 1960-61. The vendors Mst. Jantay and Mst. Begum sold it by means of a mutation attested on 6-8-1964. The plaintiff Ismail,now respondent, instituted this suit to pre-empt the sale on 29-7-1965 on two grounds; (i) that he was a co-sharer in the land in suit and (ii) that he was a collateral of the vendors. It is common ground between the parties that before the institution of the suit there had been consolidation of holdings under the Consolidation of Holdings Ordinance, 1960, with the result that a new land was allotted in lieu of the land subject matter of the sale mutation. It was found that the plaintiff was a collateral of Mst. Begum vendor but was not a collateral of the other vendor Mst. Jantay and that the transaction in question was indivisible. It was found also that the plaintiff was not a co-owner in the Khata of the new land allotted to the vendee-defendants in lieu of the land subject matter of the sale mutation. The learned Civil Judge dismissed the suit by his judgment dated 18-2-1969 on the ground that with the consolidation of holdings, the plaintiff had ceased to be a co-owner of the land in suit. On the plaintiffs appeal, however, the learned Additional District Judge decreed the suit by his judgment dated 7-4-1970 in respect of the land measuring 7 Kanals 14 Marias which according to him had been given to the vendee defendants in lieu of the old land measuring 7 Kanals 19 Marias. The learned Additional District Judge failed to understand "how the Consolidation proceedings could deprive the appellant of his right to purchase the land in preference to the vendees." He was prepared to concede that the plaintiff "should have established the existence of this right, not only at the time of the sale but also at the time of the institution of the suit, to entitle himself to the passage of a decree for possession by pre-emption", but the real question in his opinion was "whether the Consolidation of holdings took away the right which he enjoyed at the time of the sale, because of the circumstance of being a co-sharer in the same khewat with respondent No.l." In the view of the learned Additional District Judge for purposes of a pre-emplion suit, the plaintiff "will still be deemed to have been a Co-sharer in the same khewat alongwith Mst.Jan.tay even at the time of the institution of the suit irrespective of Consolidation of holdings and the fact that some new land had been given to the vendees in a different khewat or plot." For his view the learned Additional District Judge derived support from Qaim Din vs. Said Ahmad and another (PLD 1967 Lahore 1171). 4. It is well settled that in order to succeed the plaintiff must retain his preferential right of pre-emption at three stages, namely, at the date of the sale, at the date of the suit and at the date of the decree. Malhi KJian vs. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others (rtj 1991 Supreme Court 522). Also see Qaim Din vs. Said Ahmad and another (PLD 1967 Lahore 1171) at page 1185). Here, the plaintiffs claim to pre-emption was founded upon his being a co-sharer. As observed above, the consolidation of holdings was complete on 31-12-1904, that is, before the institution of this suit. Admittedly, in the new Khata, the plaintiff was not an owner and had, therefore, as a result of the consolidation of holdings lost ihc preferential right of pre-emption. In other words although he was a co-sharer of the land subject matter of the sale mutation at the date of the sale yet he had ceased to be so at the date of the suit. Learned counsel for the appellants cited a case reported as 32 I.C.120 in which, as a result of partition of holdings before the institution of the suit, the plaintiff had ceased to be a co-owner of the land in suit and his suit was dismissed and argued that the same principle applies to this case. Learned counsel for the plaintiff on the other hand supported the reasoning of the learned Additional District Judge; he was of the view that the learned Additional District Judge had rightly relied upon Qaim Din case. 5. The facts of Qaim Din case were that the plaintiff had claimed to pre-empt the sale on the grounds (a) that he was a co-sharer hi the Khata and (b) that he was a co-owner in the taraf, palli or the sub-division in which the land in suit was situated alleging that the vendee was not a co-owner therein. The plaintiff was not proved to be a co-sharer in the Kliata. The Courts, however, held that the plaintiff was a co-owner in the taraf, patti and the sub-division concerned and also that "the new land is situated in Patti Amir Khan and the plaintiff-respondent has been held to be an owner in the said;/«/." In that case there were consolidation of holdings during the pendency of the suit; the plaint was amended and the relief of possession was sought in respect of the new land also. Thus, what distinguishes that case from this £asc is the important fact that in that case, despite the consolidation of holdings the plaintiff had continued to retain his right of pre­ emption. Then the proposition of law debated in that case was -altogether a different proposition; it was whether "by the operation of the consolidation proceedings, the land which was the subject-matter of the original sale no longer existed and having been substituted by the new land, no decree for pre-emption could be passed against the new land." This is not the question in this case. It is also significant to note that the learned Judge, late K.E. Chauhan, J. did notice the class of case in which the plaintiff had based his right of pre-emption on coownership but had lost it during the pendency of the suit as a result of the partition of the KJiata. As regards that class of case he observed that the emphasis in those cases was on the qualification of the plaintiff-pre-emptor rather than on the change in the pre-empted property" and those cases had, therefore, no relevance to the facts and circumstances of the case before him. In that behalf the learned Judge also noted the principle that the plaintiff must retain his preferential right of pre-emption at the date of the sale, at the date of the suit and at the date of the decree. I am, therefore, of the opinion that the ratio decidendi of Qaim Din case is not applicable to the. facts of this case. I, therefore, hold that as the plaintiff had lost his right of pre-emption as a result of the consolidation of holdings and was not a co-owner of the new land at the date of the suit as also at the date of the decree, he was not entitled to pre-empt the sale. 5. For these reasons, the appeal is accepted, the judgment and decree of the learned Additional District Judge dated 7-4-1970 are set aside and the suit is dismissed. The parties arc, however, left to bear their own costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 Lahore 426 PLJ 1993 Lahore 426 Present: FAZAL KARIM, J. MUBARAK AHMAD — Petitioner versus SUB REGISTRAR, DISTRICT COURTS, FAISALABAD, and 4 others — Respondents Writ Petition No.9120 of 1992 (also W.P.Nos.3615,1560,1561, 2355, 2467,1690, 2151,1649, 3448, 3730, 3728, 564,1173,1713, 2665, 3951, 2837, 2838, 2770 and 4497 of 1993) accepted on 18-5-1993 Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981- —R.'4(l)~Immovable property-Gift of-Whether Rule 4(1) does not apply to transfer of property by way of gift-Question of-Contention that expression "Tax on Transfer of Immovable Property" means that taxes on all transfers of immovable property arc leviable, therefore, Rule 4 applies to all transfers including gifts-Held: Intention of rule making authority was made clear by words "tax shall become due as soon as sale deed is registered"—Held further: In any case, Rule 4(1) being a taxing provision, it has to be strictly construed, i.e. if it is open to two interpretations, then interpretation which favours tax payer, has to be adopted-Petitions accepted. [P.428]A,B & C Ch. SardarAH, Mr. Muhammad Azam BhoranA Malik Noor MuhammadAwan, Advocates for Petitioners. Rana Muhammad Arshad, Addl. A.G. for Respondents 1,3 and 4. Mr. All Ahmad Awan, Advocate for Respondents 2 & 5. Dates of hearing: 17 and 18-5-1993. JUDGMENT This will dispose of Writ Petitions No.9120 of 1992, 3615, 1560, 1561, 2355, 2467, 1690, 2151, 1649, 3448, 3730, 3728, 564, 1173, 1713, 2665, 3951, 2837, 2838, 2770, and 4497 of 1993. 2. The common question of law falling for determination in these writ petitions is whether a registering officer acting under the provisions of the Registration Act, 1908, can decline to register a gift deed without payment of the property tax levied under Section 137 of the Punjab Local Government Ordinance, 1979. Section 137 of the Punjab Local Government Ordinance, 1979 (to be referred to as the Ordinance) empowers the Local Councils to "levy all or any of the taxes enumerated in the second schedule." Item No.5 of that schedule, part III, reads: "Tax on Transfer of Immovable Property", Section 144 of the Ordinance provides: "All taxes and other charges levied by a local council shall be imposed, assessed, leased, compounded, administered and regulated in such manner as may be provided by rules." Section 167 of the Ordinance empowers the Government to make rules for carrying out the pruposes of the Ordinance. In exercise of that power, the Government has framed the Rules called the Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981. Sub-Rule (1) of Rule 4 thereof says: "Where an immovable property is transferred through a registered deed, the tax shall become due as soon as the sale deed is registered and may be assessed and collected by the taxation officer either directly or through the Registrar or Sub-Registrar concerned if so authorised by the Board of Revenue cither by a general or special order". Rule 5 provides that the tax shall be paid by the transferor of the property" unless otherwise mutually agreed to between the transferor and the transferee in writing" and Rule 7 empowers the Council to recover the tax assessed under Rule 4 as arrears of land revenue. By Rule 8, a right of appeal has been given to a person aggrieved by an order under Rule 4 or Rule 7. 3. All these writ petitions relate to the Municipal Corporation, Faisalabad . Learned counsel for Municipal Corporation, Faisalabad , has placed before me a copy of notification dated 19-8-1991 by which the schedule of the tax on transfer of immovable property was amended and th rate of tax was increased from 2\% of the price of the transferred immovable property to 4% of the said price. In view of this notification, there can be no doubt that the Municipal Corporation, Faisalabad, has levied the tax and that the petitioners arc liable to pay it in accordance with the rates mentioned in the notification. Learned counsel for the petitioners, however, argued that Rule 4 of the Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981 (to be called the Rules) applies the transfer of immobvalc property by way of sale and not to transfers by way of gift. The learned Additional Advocate General was fair enough to concede that this is the true Icgl position. Learned counsel for Municipal Corporation, Faisalabad , and its contractors, however, referred to the definition of the expression "Tax on Transfer of Immovable Property" and argued that the taxes on all transfers of immovable property are leviable and, therefore, Rule 4 applies to all transfers, including gifts. He sought support for his contention from the words "where an immovable property is transferred through a registered deed" in rule 4 of the Rules. 4. The contention of the petitioners counsel, supported as it was by the learned Additional Advocate General, must, in my opinion, succeed,. True that in the opening part of Rule 4, namely "where an immovable property is transferred through a registered deed", the words "sale" and "sale deed" do not occur but the intention of the Rule making authority was made clear by the words "the tax shall become due as soon as the sale deed is registered". For a transfer can be by way of sale, gift, exchange etc. and if the intention were that the Rule will apply to all transfers, then it would have been sufficient to say that the tax shall be paid as soon as the deed is registered"; in that case it was wholly unnecessary to use the expression "sale deed". In any case, the Rule being a taxing provision, it has to be strictly construed, that is to say, if it is open to two reasonable possible interpretations, then that interpretation which favours the tax payer has to be adopted. It must follow, therefore, that the registering officer, acting under the Registration Act, cannot decline to register a deed other than a sale deed on the basis that the tax under the Ordinance and the Rules has not been paid. 5. I, therefore, accept the petitions and declare that the act of the registering officer declining to register the deeds of gift on the ground that the tax under the Ordinance has not been paid is without lawful authority and of no legal effect. The parties arc left to bear their own costs. (MBC) (Approved for reporting) Petitions accepted.

PLJ 1993 Lahore 429 PLJ 1993 Lahore 429 Present: MALIK MUHAMMAD QAYYUM, J. MERAJ DIN and 3 others - Petitioners 7 versus ADDITIONAL DISTRICT JUDGE, GUJRANWALA, and 2 others -- Respondents Writ Petition No.2731 of 1992, accepted on 29-5-1993. Appeal— —Tenant-Ejectment of-Objection petition by petitioners-Dismissal of~ Whether appeal against order dismissing objection petition, was not maintainable- -Question of-Under Section 15 of Urban Rent Restriction Ordinance, 1959, a right subject to certain conditions, vests in an aggrieved party to challenge any order of Rent Controller through appeal to District Judge-In this case, objection petition had been finally disposed of under Section 17 of Ordinance-Held: It is well settled that a person who is not a party to ejectment petition, may, by filing an objection petition, object to execution of order before Rent Controller, and final disposal of his objection petition by way of dismissal, would be appealable under Section 15 of Ordinance-Held further: Additional District Judge fell in error in holding that order impugned before him was interlocutory-Petition accepted and case remanded for decision of appeal on merits. [Pp.430 & 431]A,B,C,D & E PLJ 1988 SC 140 rd. Mr.Karamat Nazir Bhandari, Advocate for Petitioners. Nemo for Respondents 1 & 2, Mr.Muhammad Ahmad Bani, Advocate for Respondent No.3. Date of hearing: 29-5-1993. judgment This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, assails the judgment of the learned Additional District Judge, Gujranwala, dated 5-11-1991, whereby the appeal filed by the petitioners under Section 15 of the Punjab Urban Rent Restriction Ordinance, 1959, against the order of the Rent Controller dated 13-3-1988, was dismissed as being not maintainable. 2. It is not necessary to go into the details; suffice it to say that an order under Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, was obtained by respondent No.3 against Bashir Ahmad son of Karim Bakhsh, whereafter he applied for execution of the order of eviction. During the pendency of the execution proceedings, an objection petition was filed by the petitioners, which was dismissed by the Rent Controller on 13-3-1988. Against that order, an appeal was filed by the petitioners, which was dismissed by the learned Additional District Judge, Gujranwala, as being not maintainable. 3. Mr.Karamat Nazir Bhandari, Advocate, learned counsel for the petitioners has relied upon Section 15 of the Punjab Urban Rent Restriction Ordinance, 1959, to contend that any order passed by a Rent Controller which finally disposes of an application can be appealed against and the view taken by the appellate Court that the order in question is interlocutory i$ not sustainable. 4. Learned counsel for respondent No.3, on the other hand, has supported the impugned order. 5. There is considerable merit hi the contention raised by learned counsel for the petitioners. Section 15 of the Punjab Urban Rent Restriction Ordinance, 1959, as amended by Punjab Ordinance 9 of 1979, which provides for appeals gainst orders passed by the Rent Controller to the extent it is relevant to the "present controversy is reproduced hereunder:- "15. Appeal (1) 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 rentedland in relation to which the order is passed, is situated: Provided that no appeal shall lie against an order made by a Controller under sub-section (6) of Section 13 determining approximately the amount of rent due or the rate of rent and directing the tenant to deposit all the rent due: Provided further that no appeal shall lie from an interlocutory order passed by the Controller". 3. A plain reading of this provision shows that a right vests in an aggrieved party to challenge any order of the Rent Controller by way of an appeal before the District Judge. This is, however, subject to certain conditions, firstly, that the order should be such which has finally disposed of an application made to the Rent Controller under the Ordinance; secondly, that the order should not be interlocutory in nature and thirdly, that it should not be an order for deposit of rent under Section 13 (6) of the Ordinance. 4. In contra distinction thereto, Section 15 of the Ordinance prior to its amen^jinent by Punjab Ordinance 9 of 1979 provided for appeals only against certain specified orders viz. those under Section 4,10,12 and 13 of the Ordinance. The amendment had the effect of widening the scope of Section 15 and it was no loncer necessary for an order to (be) appealable that it must fall under Sections 4, 10. 12 and 13. Any order passed by the Rent Controller subject to the two provisions which finally disposes of an application under the Ordinance was made appealable. S. In the present case, by virtue of the order which was appealed against by the petitioners before the Additional District Judge, on the objection petition filed by them, petition had been finally disposed of under Section 17 of the Punjab Urban Rent Restriction Ordinance, 1959. Every order made by the Controller under the Ordinance is to be executed as if it was a decree of the Civil Court. By now it is well settled that a person, who is not a party to the ejectment petition may by filing an objection petition object to the execution order before the Rent Controller, who has jurisdiction in law to decide such objections. (See Muhammad Yasin vs Sheikh Ghulam Murtaza and another (PLJ 1988 SC 140). It follows, therefore, that the final disposal by way of dismissal of an application objecting to the execution of the order of ejectment, would be appealable under Section 15 thereof. 9. The Additional District Judge while coming to the conclusion that the aforesaid order was not appealable appears to have relied upon the second proviso to Section 15 (1) which bars the filing of an appeal against interlocutory order. Unfortunately, the Additional District Judge fell in error in holding that the order before him was interlocutory and not final in nature. He completely omitted to consider that so far as the petitioners were concerned, the order of the Rent Controller was final and not interim as the rights interse the petitioners and respondent No.3 stood conclusively adjudicated "upon and there was nothing left to be decided further. The mere fact that the execution application was not disposed of while dismissing the objection petition would not detract from the finality of the order qua the rights of the petitioners nor could the same be considered interim or interlocutory in nature. Section 15 of the Ordinance does not state that for an order to qualify as an appealable order must have disposed of the entire matter pending before the Rent Controller. If the order is determinative, finally and conclusively, of rights of the parties, it cannot be considered as an interlocutory order so as to fall within the mischief of proviso to Section 15 (1) of the Ordinance. For the reasons stated above, this petition is allowed, the judgment of the learned Additional District Judge dated 5-11-1991 is declared to be without lawful authority and of no legal effect, with the result that the appeal filed by the petitioners shall be deemed to be pending before him and shall be decided afresh in accordance with law. There shall be no orders as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Lahore 432 PLJ 1993 Lahore 432 Present: malik muhammad qayyum, J. SAIFUR REHMAN—-Petitioner versus COMMISSIONER, GUJRANWALA DIVISION, and 3 others'—Respondents Writ Petition No.6882 of 1989, accepted on 26-5-1993. Jurisdiction— —Employee of Municipal Corporation-Promotion of--Appeal to Commissioner against order of Mayor promoting petitioner-Acceptance of appeal-Challenge to—Whether Commissioner had jurisdiction to hear appeal—Question of—Punjab Municipal Committee Service Rules, 1969 did not provide for any appeal either on 19-12-1988 when Mayor passed order impugned before Commissioner or even on 3-9-1989 when appeal was decided by him-Appeal to Commissioner was provided by amendment dated 25-7-1990 by adding Rule 13-A~HeId: Amendment has no applicability to case as appeal of respondent No.2 was decided by Commissioner much before this amendment-Petition accepted. [Pp. 433 & 434]A,B,C&D PLD 1967 SC 314 and PLJ 1985 SC 353 rel. C Ghulam Qadir, Advocate for Petitioner. Nemo for Respondent No.l. Mr. Asmat Kainal KJian, Advocate for Respondents 2 & 3. Ch. Hamiduddin, Advocate for Respondent No.4. Date of hearing: 9-5-1993. judgment This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises in the following circumstances. The petitioner is employee of the Municipal Corporation Gujranwala and is working as a. teacher in Middle School No.12, Arfat Colony, Gujranwala, under its control. By an order passed by the Mayor Municipal Corporation Gujranwala dated 19-12-1988, the petitioner was promoted to a post in Basic Scale No.15 in preference to respondent No.2. This order of the Mayor was assailed by respondent No.2 by filing an appeal, which was allowed by the Commissioner Gujranwala Division Gujranwala on 3-9- 198"°. 2. The petitioner has assailed the validity of this order of the Commissioner in this petition. 6. In support of this petition, Ch.Ghulam Qadir, Advocate, learned counsel for the petitioner has contended that the Commissioner was not competent to entertain or hear appeal against the impugned order of the Mayor, which related to the terms and conditions of the employees of the Municipal Corporation and as such, his order is wholly without jurisdiction. 7. MrAsmat Kamal Khan, Advocate, learned counsel for the contesting respondent has, however, submitted that as no such objection was raised by the petitioner before the Commissioner, he cannot be allowed to agitate it for the first time before this Court and that too in the amended petition. 8. There is considerable merit in the contention of learned counsel for the petitioner that the order of the Mayor Municipal Corporation promoting the petitioner to higher grade was not appealable before the Commissioner. 9. According to Section 166 of the Punjab Local Government Ordinance, 19~9. any person aggrieved by an order passed by a local council or its Chairman may appeal to such authority, in such manner and within such period as may be prescribed. Prescribed according to Section 2 (XXIX) of the Punjab Local Government Ordinance, 1979, means prescribed by rules. It will be appreciated that Section 167 of the Ordinance does not, by itself, provide the forum for filing the appeal in the manner in which the same is to be filed. This matter has been left to be prescribed by the rules making authority by framing rules. It thus becomes necessary to examine as to whether the Commissioner has been authorized by any rule to hear the appeals against the orders passed by the Local Council or its Chairman in matters relating to service of its employees. 1. The first set of rules on the subject are the Punjab Local Councils (Appeals) Rules, 1980, but according to rule 1 (3) itself, these rules do not apply to appeals by servants of local councils in matters relating to their service. The other rules, which may have some relevance, are the Punjab Local Councils Sen ants (Efficiency and Discipline) Rules, 1981, Rule 17 of which confers a right of filing an appeal upon the servant of a local council. But that right is restricted to cases where a penalty has been imposed upon the servant of the local council under the said rules and is not available in other cases. (See Muhammad Ashraf . Muhammad Siddique & 2 others (PLD 1977 Lahore 1082) and Muhammad Akram V. Abdul Ghafoor etc. (1980 SCMR 541). Furthermore, it is also to be noted that though under rule 17, originally the power to hear the appeal was with the Commissioner but by a subsequent amendment by notification dated 3-1-1983, this power now vests with the Director Local Council and Rural Development of the Division. 3. As the dispute betweeen the petitioner and respondent No.2 related to their seniority and promotion to higher grade, it was governed by the Punjab Municipal Committee service Rules, 1969. These rules did not provide for any appeal either on 19-12-1988 when the Mayor of Municipal Corporation passed the order which was impugned before the Commissioner or even when the appeal was decided by him on 3-9-1989. Subsequently, however, by notification No.SOV.l- 30/81 dated 25th July, 1990, the rules were amended to provide an appeal against the order of the Local Council to the Commissioner by -adding rule 13-A. This amendment, however, has no applicability to the present case as the appeal of respondent No.2 was decided by the Commissioner much before this amendment. 4. As regards the contention of learned counsel for the respondent that as no objection was raised to the competency of the appeal before the Commissioner during proceedings pending before him, it cannot be agitated for the first time before this Court, it may be observed that the petitioner was respondent before the Commissioner and even (if) it be assumed that he had failed to raise the objection, though it is disputed by the petitioner, yet this failure could not vest the Commissioner with the jurisdiction, which he did not possess. In Muhammad Afzal V. Board of Revenue, West Pakistan and another (PLD 1967 S.C. 314), it was ruled that mere submission to the authority of a Tribunal in capacity of a respondent neither confers any jurisdiction on the Tribunal nor deprives the petitioner of his right to challenge the order before the High Court in the exercise of its constitutional jurisdiction. Reference may also be made to Riazul Haq V. Selh KJiushi Muhammad and another (PLJ 1985 SC 353). This objection of learned counsel for the respondemt, therefore, cannot prevail. In view of what has been stated above, this petition is allowed and the impugned order of the Commissioner Gujranwala Division, Gujranwala 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-1993 Lahore 438 PLJ-1993 Lahore 438 Present: malik muhammad qayyum, J PUNJAB PROVINCE through SECRETARY and anothcr-Pctitioncrs Versus M/S HUSSAIN CONSTRUCTION COMPANY LTD-Rcspondent Civil Revision No. 778 of 1993, dismissed on 18.5.1993 Arbitration Act 1940(X of 1940)— —S.12--Revocalion of authority of arbitrators-Application for-Dismissal of- Appeal against-Contention that two arbitrators appointed by trial court could not continue to remain arbitrators on account of their retirement from posts of Superintending Engineers-At time of their appointment as arbitrators, they were in employment of Government of Punjab with rank of Superintending Engineer and their appointment was perfectly in accord with terms of arbitration agreement-Held: Their subsequent retirement from service is of no consequence and cannot denude them of their authority to act as such after having been validly appointed-Petition dismissed. [P.440JA&B PLD 1977 Lah. 1013, AIR 1951 All. 359 and PLD 1960 Lah. 677ml. Mr. Giilzar Ahmed Qureshi, Advocate for Petitioner. Date of hearing: 18-5-1993. ordfr This petition under Section 115 of the CPC seeks revision of an order passed by the learned Civil Judge 1st Class, Lahore, on 21.2.1993, whereby an application under Section 12 of the Arbitration Act, 1940, filed by the petitioners was dismissed. 8. The dispute arises out of a contract awarded by the petitioner to the respondents for construction of a Road Bridge over River Indus near Gha/i Ghat Guide Bank Right on 19.7.1979. Subsequently, some differences arose between the parties, which led to filing of an application under Section 20 of the Arbitration Act, 1940 by respondent No.l for reference of these disputes to arbitratic^ in accordance with clause 25-A(c) of the agreement. It was accepted by the tri-i! Court' on 22.2.1986 and Ch. Munir Ahmad and Sheikh Ghulam Muhammad, Superintending Engineers, were appointed as arbitrators. That order f the trial Court was impugned by the petitioners before this Court in C.R. 1644/.%, which was dismissed on 28.5.1989. However, with the consent of the parties, Mr.Justice (Retired) Ataullah Sajjad was appointed as the sole arbitrator in place of the two arbitrators appointed by the trial Court. Later on, the petitioners filed CM. 77-C/90 praying for the review of the order appointing Mr. Justice (Retired) Ataullah Sajjad as the arbitrator. That application was allowed on 14.7.1992 on the ground that MrJustice (Retired) Ataullah Sajjad had been appointed Chairman of the National Industrial Relations Commission. Accordingly, this Court recalled the order of appointment of Mr. Justice (Retired) Ataullah Sajjad as arbitrator with the result that the order of the trial Court appointing Ch. Munir Ahmad and Sheikh Ghulam Muhammad, Superintending Engineers, as arbitrators stood restored. 9. It was thereafter that the petitioner applied under Section 12 of the Arbitration Act, 1940, for revocation of the authority of the arbitration on the ground that as both the arbitrators had ceased to be Superintending Engineers, they could not act as arbitrators in view of clause 25-A (c) of the agreement, which contemplates a reference to arbitration to two officers of the department not below the rank of Superintending Engineers. That application having been rejected by the trial Court on 21.2.1993, the petitioners have come to this Court by filing this petition for revision. 2. Learned counsel for the petitioners in support of this petition, has contended that as admittedly two arbitrators appointed by the trial Court had ceased to be Superintending Engineers on account of their retirement, they cannot be deemed to be officers not below the rank of.Superintending Engineer and cannot, therefore, remain as arbitrators. 3. This contention of learned counsel for the petitioners has no force. Admittedly, at the time when the two arbitrators were appointed by the trial Court, both of them were in the employment of the Government of the Punjab with the rank of Superintending Engineer and as such their appointment was perfectly in accord with the terms of the arbitration agreement. Their subsequent retirement from service is of no consequence and cannot denude the arbitrators of their authority to act as such after having been validly appointed. Somewhat similar controversy came before this Court in West Pakistan through the Executive Engineer, Rawalpindi v. Messcrs Azhar Brothers (PLD 1977 Lahore 1013). In that case, the parties had agreed that the Superintending Engineer Public Health Department be appointed as sole arbitrator to adjudicate upon the matter in dispute between them. It appears that before the award could be rendered by the said officer, he had been transferred from that post. One of the questions raised before this court was as to whether the award has been announced by a person to whom the matter has been referred. The answer to this question was rendered in the affirmative. The following observations appearing in para 10 of the judgment at page 1016 are instructive and may be re-produced with advantage: "I am of the view that this argument based upon the interpretation of the statement on the basis of which the appointment was made, is without any merit. The agreement is only to the extent that a person who was a Superintending Engineer, Public Health Department at the time of making the statement would decide the matter as an arbitrator. It did not go farther, nor can it be interpreted to imply any disqualification on the part of such an arbitrator after ceasing to enjoy the post and status which he was holding at the time of appointment. The statement is only to the effect that such a person who is holding the post at that precise point of time shall decide the matter. The question of revocation of the authority of this arbitrator would therefore be subject to the sanction of the Court under the provision of Section 5", Reference may also be made to Jai Daval Pearey La! v. Chunni Jal Paraolam Dass and another (AIR 1951 All.359) and Federation of Pakistan v. H. Chiilam Mohyitd-Din (PLD 1960 Lahore 677). In the result, this petition is without any force and is accordingly dismissed in (SDi (Approved the reporting) Petition dismissed.

PLJ 1993 Lahore 441 PLJ 1993 Lahore 441 Present: GUI. ZARIN KlANI, J MUHAMMAD SHARIF and 2 others-Petitioners versus INAYAT MUHAMMAD and 2 others-Respondents Civil Revision No. 774 of 1993, dismissed on 18.5.1993 Specific Relief Act, 1877 (I of 1877)-- —S. 27(c)—Agreement to sell—Specific performance of—Suit for—Impleading of respondents 2 and 3 as party to suit-Challenge to—It is true that ultimate remedy for respondents 2 and 3 (who claim agreement to sell in their favour earlier in time) was a suit for specific performance-However, they had a tangible interest in result of suit for specific performance instituted by petitioners against respondent No. 1-Tt could not be said that they were unnecessary parties-They had clear interest in litigation for protecting their legitimate rights in property agreed to be sold to them-Held: In allowing joinder of respondents 2 and 3 in a suit for specific performance brought by petitioners against respondent No. 1, trial court did not err and acted with perfect jurisdiction-Petition dismissed. [Pp.442&443| A&B AIR 1964 Tripura 16 rel. Mr. Bashir A. Mujahid, Advocate for Petitioners. Date of hearing: 18.5.1993. ORDER Revision petition was against an interlocutory order of the trial Court dated 6.3.1993, by which it impleaded respondents No. 2 and 3 as parties to the civil suit for specific performance of an agreement to sell instituted by the petitioners. Respondent No. 1 owned 24 Kanals, 7 marlas of land at Mauza Vern in tehsil and district Sheikhupura. By an undated verbal agreement in the year 1992, he agreed for the sale of his above land to the petitioners for the sale-price of Rs. 3.50.000/- and orally received Rs. 1,00,000/- as part consideration, on 8.12.1992. Petitioners asserted that they were put in possession of the land in dispute under an oral agreement to sell in their favour. Since the sale did not take place in their favour, they instituted a civil suit for completion of it on 2.1.1993, in the civil Court at Sheikhupura. On 26.1.1993, respondents No. 2 and 3 applied to the trial Court for becoming parties to the civil suit on the ground that respondent No. 1 had agreed with them on 28.11.1992 for the sale of his above land. Photo copy of agreement was annexed. Petitioners resisted intervention of respondents No. 2 and 3 in the suit as being unnecessary parties. Upon examination of merits of the case, the trial Court found that the intervenors were necessary parties to the suit and allowed their joinder in it, subject to payment of Rs. 100/- as costs to the petitioners. In the first instance, petitioners preferred a revision from this order of the trial Court in the District Court. Later, it was discovered that value of the subject matter in dispute in the suit exceeded pecuniary jurisdiction of the District Court, and, hence, revision petition was returned to the petitioners for its presentation to the proper Court. Consequently, after receiving the return of papers, these were filed in this Court, and, thus the revision has come up for hearing today. It was urged by Mr. Bashir A. Mujahid Advocate, learned counsel for the petitioners that respondents No. 2 and 3 were erroneously allowed to become parties to the suit for specific performance. Their only remedy was to file a separate suit for specific performance respecting agreement to sell in their favour. It could not be gainsaid that written agreement in favour of respondents No. 2 and 3 was prior to the oral payment of Rs. 1,00,000/- as earnest money by the petitioners to respondent No. 1. Learned counsel was unable to provide the precise date of oral agreement to sell in favour of the petitioners. Respondent No. 1 denied about any agreement to sell his land in favour of the petitioners or receipt of earnest money from them. It was true that the ultimate remedy for respondents No. 2 and 3 for completing the sale of the land in dispute in their favour was a suit for specific performance or a voluntary sale-deed by respondent No. I in their favour. Till that event took place, transfer of ownership rights was not effective. However, in the present context, respondents No. 2 and 3 had a tangible interest in the result of the suit for specific performance instituted by petitioners against respondent No. 1. It could not be said that they were unnecessary parties. They had clear interest in the litigation for protecting their legitimate rights in the property agreed to be sold to them. As for possession on the land in dispute, petitioners gave no proof. Mere oral assertion at the hearing was not enough. To avoid collusion and easy ex-parte success in the suit for specific performance, presence of respondents No. 2 and 3 before the trial Court was essential. In Kshetra Mohan Nath Sarma v. Mohammad Sabir Bepari and othcrs-AlR. 1964 Tripura 16, it was held that "A person claiming under an anterior agreement of sale from the same party who had entered into the subsequent agreement of sale with the plaintiff will come within the mischief of Section 27(c) of the Specific Relief Act and hence is a necessary party. There cannot be specific performance of two agreements for sale against the same person and if a suit is brought to enforce one agreement of sale, it must be decided in that suit which of the holders of the agreements for sale has the right to I get specific performance". Therefore, in allowing joinder of respondents No. 2 and ; 3 in a suit for specific performance brought by petitioners against respondent No. 1. the trial Court did not err and acted with perfect jurisdcition. Therefore, the impugneld order was neither illegal nor irregular nor defective. In result, there was no scope for interference. Consequently, civil revision is lintine. i M BC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 443 PLJ 1993 Lahore 443 Present: GUI, ZARIN KIANI, J MAHMOOD ARIF--Petilioner Versus CHIEF ADMINISTRATOR, AUQAF, Lahore-Respondent Civil Revision No. 332 of 1992, dismissed on 7.6.1993 Civil Procedure Code, 1908 (V of 1908)- —-S. 11-read with Order VII Rule 11-Civil suil--Whethcr barred by res ;i/d/fflfo--Question of-Subjcct matter in suit had already been decided long long ago--Not only parties in previous as well as present suit were same, but subject matter of suit was also common-Findings in earlier suit recorded by trial court and maintained in appeal, precluded their re-agitation in subsequent round of litigation—Held: Restoration of suit for its retrial must be an exercise in total futility without any change of result-Held further: Exercise of discretionary jurisdiction in revision shall be of no purpose and benefit— Petition dismissed. [Pp.444&445]A Mchr Muhammad Nawaz Khan, Advocate for Petitioner. Mr. Muhammad Rafiq Arif, Advocate for Respondent. Date of aring: 7.6.1993. judgment Petitioner was a Sub-Engineer in the Auqaf Department of Government of Punjab . He tendered his resignation from service. His resignation was accepted, on 3.7.1977, by Chief Administrator Auqaf, Lahore ^ Later, petitioner resiled from his resignation and submitted that he was coerced to submit his resignation. Initially, the petitioner approached for the relief, to Federal Service Tribunal. His appeal was either dismissed or withdrawn on 6.5.1979. He also applied to Martial Law Administrator Zone-A, Lahore for relief, but was unsuccessful. He, then invoked constitutional jurisdiction of this Court, in writ petition No.2402/S of 10"""). it was dismissed in limine, on 6.5.1979, by a learned Single Judge of this Court by observing that his remedy lay in other forum. After the dismissal of the writ petition in the High Court, petitioner filed a civil suit on the subject in a civil Court at Lahore. The Chief Administrator Auqaf, who was the sole defendant in (he suit, contested it on merits. On 28.4.1982, the trial Court dismissed the suit instituted by the petitioner. He preferred an appeal. Tt was heard by learned' Additional District Judge, Lahore who maintained the findings of the trial Court recorded on material issues and dismissed the appeal with costs on 22.9.1982. Incidently, learned counsel for the petitioner was the learned Judge who had dealt with the appeal of the petitioner and given opinion on merits of his case. Ft was found that tender of resignation was voluntary. Presumably, the judgment given in appeal was not further assailed and consequently, it attained finality under the law. Approximately, four years later, the petitioner agitated the same issue in the civil Court and instituted a fresh suit for it, on 7.7.1986. The defendant, now respondent in this Court, contested the suit. During the course of the trial, the defendant submitted an application for summary rejection of the plaint under Order VII Rule 11 of the Civil P.C. It was fixed on 7.5.1987, for hearing of arguments. Earlier to it, the trial Court had settled appropriate issues for taking evidence of the parties on them. Since on the adjourned date, plaintiff was absent, whereas the defendant was represented by his counsel, trial Court dismissed the suit for default in appearance. On 14.11.1987, an application for restoration of the dismissed suit was filed by the petitioner. Defendant resisted the restoration. The matter was put in issues and fixed for taking of evidence. Petitioner gave no evidence and also defaulted in appearance. In this state of record, the trial Court dismissed the restoration petition on 14.4.1990. Petitioner preferred an appeal from the decision of the trial Court. Appeal was allowed on 18.12.1990, wherein impugned order was set aside and (he trial Court was called upon to redccidc the matter after affording an opportunity of reasonable defence to the parties. On 14.5.1991, the trial Court dismissed (he revival-application and appeal preferred from the decision failed on 21.1.1992, in the Court of learned Additional District Judge, Lahore . Thereupon, a civil revision was filed in this Court. It was admitted to hearing, on 17.5.1992, and has come up for hearing today, in presence of the learned counsel for parties. On behalf of the petitioner, Mehr Muhammad Nawaz Khan, Advocate relied upon cases reported in P.L.D. 1954 Lahore 575, P.L.D. 1970 Lahore 412, P.L.D. 1971 Lahore 746, 1986 C.L.C. 1320 to contend that since a miscellaneous matter pertaining to rejection of the plaint under Order VII Rule 11 of Civil P.C. was posted for hearing before the trial Court, on 7.5.1987, it could not have dismissed the main suit for default in appearance. Only the matter listed before it could have been dealt with and not the matter not fixed for hearing on that day. Learned counsel was correct in his submission and the order sheet maintained by the trial Court supported him in this behalf. Had this been the only matter, the civil revision must have been allowed for trial of the suit on merits. But unfortunately, there was no merit in the suit. The subject-matter was already decided long long ago. Learned counsel for the respondent gave me the copies of judgments given in the earlier round of litigation between the parties. Not only the parties were the same, but the subject-matter of the suit was also common. Even a cursory glance at the copies of the judgments would convince that the findings in the earlier suit recorded by the trial Court and maintained in appeal precluded their re-agitation in a subsequent round of litigation. Present suit was a clear instance to violate the rule of finality of decision enacted in Section 11 of Civil P.C. Learned counsel for the petitioner was pointedly put the question as to how in presence of the earlier decision on the suit instituted by the petitioner, a second suit on the same subjectmatter could be competently filed and tried on merits. With respect to him, he had no plausible answer. In fact, he could not have any acceptable answer. In the above scenario, restoration of the suit for its retrial must be an exercise in total futility without any change of result. It shall altogether be a purposeless litigation. Therefore, exercise of discretionary jurisdiction, which the revisional jurisdiction necessarily is, shall be of no purpose and benefit. In the above context, civil revision is dismissed with no order as to its costs in this Court. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 445 PLJ 1993 Lahore 445 Present: GUL ZARIN KIANI, J GOHAR and 4 others-Petitioners versus 'MUHAMMAD JAMEEL and 5 others-Respondents Civil Revision No. 1086/D of 1993, dismissed on 5.7.1993 Adverse Possession-- —Suit for possession—Suit decreed and decree upheld in appeal—Challenge to~ Whether petitioners were in adverse possession-Question of-Neither oral evidence adduced in case nor entries in revenue papers sustained adverse possession by petitioners on land in dispute—Petitioners' predecessor-ininterest was in occupation of land as tenant of owner and his possession was clearly permissive-Oral evidence of petitioners could not convert their permissive possession into adverse possession for ripening it into ownership rights of land in dispute-Necessary elements of adverse possession were clearly wanting in this case-Held: Lower courts rightly adjudged case in favour of respondents-Petition dismissed. fPp.447&448]A&B Syed Naeemul Hassan Sherazi, Advocate for Petitioners. Date of hearing: 5.7.1995. judgment Defendants in the civil suit for possession of a piece of land instituted by the respondents against them were petitioners in revision before this Court. The suit was decreed by the trial Court, on 2.4.1989, and appeal preferred from its decree failed on 24.5,1993, in the Court of Additional District Judge, Narowal. Lower Couts found that the respondents were owners of the land in dispute; petitioners had illegally occupied it and were liable to vacate their possession to the rightful owners. Adverse possession asserted by the petitioners was not found proved on record by the lower Courts. Respondents purchased the land comprised in Khasra Nos.95, % from its previous owners through a registered sale-deed on 23.8.1984. Registered deed was implemented in revenue papers by attestation of mutation in their favour. Consequently, the names of the vendees-respondents were borne on the Jamabandi for the year 1986-87 marked Exh.P.4. There was no dispute that the land in above two Kliasra numbers was allotted to and confirmed in the name of Muhammad Din and that it was subsequently sold to the respondents through a registered deed which was implemented in revenue records. Kliasra No.96 measured 6 kanals 8 marlas. The area of land in Kliasra No.95 was 4 kanals, 2 marlas. The petitioners unauthorisedly occupied a portion of land out of Klwsra No.96 measuring 1 kanal, 2 marlas, and, were shown to have constructed houses on it. On 4.7.1988, respondents, as purchasers of Klwsra No.96 brought a civil suit against the petitioners to recover possession of the land in Klwsra No.% encroached upon by the petitioners, after removal of the Malba from it. It was averred that the petitioners had illegally occupied the land measuring 1 kanal 2 marlas out of Kfiasra No.96, approximately 4/5 years ago, and, had without any right or authority constructed on it. It was further averred that since the entry on possession of the disputed portion was unauthorised, as also the constructions on it by the petitioners, respondents were entitled to restoration of the possession of their land free from the unauthorised constructions made by the petitioners. Upon being served, petitioners entered defence and submitted a written statement. Their defence was that they were in possession of the disputed portion of the land unauthorisedly and had prescribed for ownership rights in it, on account of holding adverse possession on it for a period exceeding 12 years. Pleadings gave rise to following issues:-- 4. Whether the defendants have become owners of the land in dispute being in adverse possession for more than 12 years? OPD. 5. Whether the plaintiffs have no locus slandi and cause of action to file the present suit? OPD. 6. Whether the plaintiffs are entitled to the decree prayed for, as regards the land in dispute, being the owners? OPP. 3-A. Whether the suit has not been properly valued for the purposes of Courtfee and jurisdiction? OPD. 4. Relief. On behalf of the plaintiffs, three witnesses were produced and one of them, namely. Hafiz Abdul Hameed as a party-witness appeared in support of their case. In addition, demarcation report Exh.P.l, Akas Shajra Exh.P.2, site-plan Exh P.3, copy of Jamabandi pertaining to land-in-dispute for the year 1986-87, Exh P.4 were tendered in evidence. For the petitioners, Ghulam Hussain defendant No.2 gave his own statement and he was supported by two D.Ws., namely. Sardar Khan and Muhammad Riaz. In furtherance of oral evidence, copies of Jamabandi for the year 1970-71 Exh.D.l, 1978-79 Exh.D.2, 1982-83 ExtvD.3, 1986-87 Ex.D.4 and extracts from Register Khasra Girdawari from Kharif 1975 to Rabi 1988 (four leaves) Exh.D.5 were produced and the evidence was finally closed. Upon review of the above oral and documentary evidence, the trial Court found that adverse possession for a requisite period of time on the land in dispute claimed by the petitioners was not established, and, consequently gave decree for Klias possession of the land in dispute to the respondents, who were found and adjudged its true owners. In appeal, finding on adverse possession was maintained and affirmed. Only point urged at the hearing requiring decision in the revision petition was. whether the petitioners were successful to establish their adverse possession on the land in dispute for acquiring hostile ownership rights in it against the true owners. On a correct reading of record, petitioners had miserably failed to prove that they ever held the land in dispute in assertion of an open, uninterrupted hostile title qua the true owners. Two of their witnesses, namely, Sardar Khan D.W.2 and Muhan-.nad Riaz D.W.3 in their cross-examination unequivocally conceded that Gohar, the predecessor-in-interest of the petitioners, occupied the land as a tenant holding under Muhammad Din, eversince the year 1947. It is interesting to note that D.W.2 was a paternal cousin of the petitioners and he had no reason to depose against them. He appeared to be a truthful witness. His testimony was consistent with the entries in the revenue records. In the Jamabandi for the year 1970-71 Exh.D.l, an extract from Register Khasra Girdawari from Kharif 1975 to Kharif 1983 Exh.D.5, Jamabandi for the year 1978-79 Exh.D.2, Jamabandi for the year 1982-83 Exh.D.3, Gohar son of Elahi Bakhsh was recorded as non-occupancy tenant of the land paying Batai rent to Muhammad Din and his successors. Out of the land measuring 6 kanals, 8 marlas in Khasra No.96, 1 kanal 8 marlas was shown under a Ghair Mumkin Haveli for the first time, in Kharif 1979. In the Jamabandi for the year 1986-87, Noor Din son of Feroze Din was recorded as non-occupancy tenant of the land in KJiasra No.96 holding under the respondents. Neither the oral evidence adduced in the case nor the entries in the revenue papers sustained adverse possession by the petitioners on the land in dispute. Gohar was father of the petitioners. He was in occupation of the land in KJiasra No.96 as the tenant of the owner. His possession of the land was clearly permissive. Unless he or his successors first relinquished the permissive possession of the land held by them as tenant and re-entered on it in assertion of an open hostile title to the knowledge of true owner, their mere oral assertion of the title could not make their possession adverse to the respondents. Practically, there was no evidence to support petitioners' adverse possession on the land in dispute. Their oral assertion, no manner how forceful it was, could not convert their permissive possession into adverse for ripening it into the ownership rights of the land in dispute. Necessary elements of adverse possession were clearly wanting in this case. The construction raised on a piece of land in dispute by the petitioners or their pedecessor-in-interest was a wholly unauthorised act and could not invest them with either moral or legal right to squat upon the land belonging to the respondents. I have said already that the possession of the petitioners on the land in dispute was clearly admitted. In raising the plea of adverse possession for acquisition of prescriptive title, a party is deemed to have admitted his possession on the property and the ownership rights of the other, whose title was sought to be transferred to them on account of their hostile possession for a required period of time. Force and stealth were not proper props for building rights to the property owned by others. More recently, the Supreme Court of Pakistan struck down Section 28 of the Limitation Act as un-Islamic. This took away the bottom from the plea of adverse possession taken by the petitioners. Having regard to the present state of record, I have no doubt that the lower Courts rightly adjudged the case in favour of respondents and directed the petitioners to vacate their possession on the land in dispute after removal of Malba from it. In result of the above, civil revision is dismissed in limine. Records be returned. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 448 PLJ 1993 Lahore 448 Present: GUL ZARIN KlANI, J JAMSHAID HUSSAIN flana-Petitioner versus Mst. REHANA KAUSAR-Respondent Civil Revision No. 1076 of 1993, dismissed on 4.7.1993. (i) Civil Procedure Code, 1908 (V of 1908)- —S. 115-Value of dowry-Recovery of-Suit for-Suit decreed and decree upheld by appellate court-Challenge to-Lower courts, on proper canning of evidence, found that respondent was entitled to recovery of Rs. 24800/- as equivalent money value of her articles of dowry-They took account of every bi ( of evidence placed before them and did not overlook any part of record- Held: Finding being on a question of fact based on rjroper appreciation of oral evidence led in suit, was not susceptible to review for being upset or substituted in revisional jurisdiction-Finding upheld. |P.450]A < ii) Limitation Act, 1908 (IX of 1908)- —Art. 49-Value of dowry-Recovery of-Suit for-Whether suit was timebarred-Question oi--Terminus-a-quo for recovery of other specific movable property' or for compensation is three years when property is wrongfully taken or detainer's possession becomes unlawful-From time of divorce onward, detention of articles of dowry in house of petitioner, was unlawful-In such a case, period of three years contemplated in Article 49 began to run from a demand by respondent for return of dowry articles and refusal of petitioner to deliver same to her-Held: Right construction of Article 49 of Limitation Act brings suit within limitation period-Revision dismissed. [P.451]B AIR 1969 Audhra Pradesh 41 rel. Sh. \aveed Shaheryar, Advocate for Petitioner. Date of hearing: 4.7.1993. •judgment Civil revision was against the agreed judgments of the lower Courts by which they gave the decree and sustained it for a sum of Rs.24,800/-, as the equivalent money-value of the articles of dowry to the respondent. Respondent was married to the petitioner on 14.8.1987. Their Nikah was registered under fhe Muslim Family Laws Ordinance, 1961. Their marriage was extremely short-lived. On 30.1.1989, the petitioner irrevocably divorced respondent. Divorce was rendered effective on 29.4.1989. Prior to it, respondent had applied to Arbitration Council for maintenance from the petitioner. On 24.8.1989, the Arbitration Council awarded her the maintenance at the rate of Rs.1,000/- per month w.e.f. 15.1.1987 to 29.4.1989. Petitioner preferred a revision to the Collector of District Gujrat. Revision was allowed on 29.1.1990, and, the monthly rate of maintenance was reduced to Rs.500/- per month. Thereupon, petitioner instituted a civil suit (No.348 of 1990), in the Civil Court, at Gujrat for setting-aside of the orders passed by the Arbitration Council and the Revising Authority. Fate of the civil suit was not known to the learned counsel but an application for temporary injunction was dismissed on 16.5.1990. On 9.3.1992, respondent instituted a civil suit to recover her articles of dowry from the petitioner, and, in the alternative, claimed their money-value assessed at Rs.24,800/-. It was asserted that at the time of her marriage, respondent was given the articles of dowry which were taken to the house of the petitioner who unlawfully detained them and was not returning them to her, despite demands made for it. Petitioner was abroad. His sister, Mst. Rifat Ara defended the suit against him as his Mukhtar-i-Aam. In the written statement submitted by her, she controverted the averments in the plaint, and, submitted that the suit was barred by Article 49 of the Limitation Act, 1908. It was further averred that respondent was estopped by her conduct to file- the suit for recovery of articles of dowry. Upon appropriate issues being settled in the suit and evidence taken from' the parties and its consideration, the trial Court decreed the suit to the respondent, on 23.1.1993. An appeal preferred from the decree by the petitioner was dismissed, on 10.4.1993, by learned Additional District Judge, Gujrat. This way, findings of the trial Court were maintained and affirmed. Against the above agreed judgments, a petition in revision was filed in this Court. It was urged that in terms of Article 49 of the first Schedule of the Limitation Act, 1908, the suit was barred by limitation; the delivery and receipt,of articles of dowry by the petitioner was not established and the value assessed for the articles of dowry was excessive. In support of bar of limitation, learned counsel referred to the case of Janat Bibi v. Abdul Karim, NLR 1981 AC 86 (AJK). Upon hearing the learned counsel and examination of the existing record, I was unable to sustain either of the contentions. In support of her claim for articles of dowry detained by the petitioner, respondent produced three witnesses, and, herself stepped in the witness box as PW-1. List of articles of dowry given to her at the time of her marriage with the petitioner and taking to his house was prepared by the respondent and marked Exh.P.l on file of the case. She and her three witnesses deposed that the articles mentioned in Exh.P.l were given to her and taken to the house of the petitioner and that the petitioner withheld them from the respondent. As far the value of the unreturned articles, respondent gave assessment of their value. Petitioner was employed abroad. After giving divorce to the respondent, he had contracted second marriage in the month of December, 1992. He occasionally returned home, but did not appear as a witness in support of his defence in the suit filed against him. His defence was conducted all throughout by his sister who acted as his Mukhtar-i-Aam. Her statement was wholly insufficient to effectively rebut the evidence adduced by the respondent in the case. Lower Courts, on proper scanning of the evidence found that the respondent was entitled to the recovery of Rs.24,800/- as the equivalent moneyvalue of her articles of dowry detained by the petitioner. In taking this view, they took account of every "bit of evidence placed "before ftiem and were not sViown "to have overlooked any part of the record from their judicious consideration. The finding being on a question of fact based on proper appreciation of oral evidence led in the suit was not susceptible to review for being upset or subtituted in revisional jurisdiction. Therefore, I would uphold the above finding and agree with the lower Courts in this behalf. Next comes the question of bar of limitation to the suit instituted by the respondent. It is a common ground that Article 49 of the First Schedule of the Limitation Act applied to the facts of the case. The terminus-a-quo for recovery of other specific movable property or for compensation or for wrongfully taking or injuring or wrongfully detaining the same is three years, when the property is wrongfully taken or injured or when the detainer's possession becomes unlawful. It was held above that articles of dowry belonging to the respondent were taken to the house of the petitioner. The wife and the husband lived together for a shortwhile. The wife was effectively divorced on 29.4.1989. Though the articles of dowry were in the house of the petitioner during the period of the respondent's desertion, yet, the presence of articles of dowry at that place was not unlawful. There was yet a hope, though slim, for rehabilitation of broken marital relations. Divorce however dashed the hope and put it asunder. From that time onward, the detention of articles of dowry in the house of petitioner was unlawful. In the inception, the possession of articles of dowry looked permissive and lawful. With pronouncement of effective divorce, the detainer's possession became unlawful. In such a case, the period of three years contemplated in Article 49 began to run from a demand by the respondent for return of her articles of dowry and refusal by the petitioner to deliver them to her. The precedent case relied upon in this behalf was not a close parallel to the facts in this case, and, therefore, was not much helpful for the decision of the point relating to bar of limitation. In my opinion, right construction of Article 49 of the Limitation Act brought the suit within limitation period. Side note (c) in case reported in AIR 1969 Andhra Pradesh 41 dealing with application of Article 49 reads: "Starting point of unlawful possession-Property to be delivered by person in possession at end of particular term detained--Detainer's possession does not bcome unlawful on mere expiry of term but it becomes unlawful, when detainer refuses to deliver possession on demand. (1912) ILR 35 Mad 636 and AIR 1920 Allahabad 353 (2), relied on". Observations in the cited case support the above construction on Article 49 of the Limitation Act. 1908. Thus construed, the suit for return of articles of dowry or their money-value in the alternative, at the time of its institution in the trial Court was within limitation. As far the contention that money-value of articles of dowry was excessive, it had no substance in it. In these days of sky-high prices of all types of goods and spiralling inflationary trends in currency, it could not be successfully said that the money-value of articles of dowry given in the list Exh.P.l was in any manner excessive or disproportionate. In result, civil revision is dismissed in limine. Records be returned. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 452 PLJ 1993 Lahore 452 Present: ZIA MAHMOOD MIRZA, J In the Matter of Shaafi Woolen Industries Limited Civil Misc. Nos. 1873/L, 1937/L and 1892/L of 1992, in Civil Original No. 21 of 1991, accepted on 5.4.1993 Companies Ordinance, 1984 (XVII of 1984)- —S. 316-Company under liquidation-Recovery suits by secured creditors against-Leave to proceed with suits-Prayer for~Law is fairly well settled that a person claiming to be a secured creditor, cannot be compelled to prove his debt—He can stand outside winding up proceedings and rely upon security- Leave cannot be refused on ground that expenses will have to be incurred by Official Liquidator in pursuing suits before Banking Tribunal, Peshawar-­ Official Liquidator is not required to visit Peshawar on each and every date and he can engage a counsel from Peshawar—Held: Applicants appear to be entitled to grant of relief prayed for by them—Leave to proceed with suits granted subject to certain conditions. [Pp.453&454]A,B&C AIR 1932 Lahore 475, PLD 1988 Karachi 72, (1868) L.T. 535 and PLD 1964 (WP) Lahore 326 rel. Mr. Muhammad Yaqoob Klian, Advocate for Applicant in (C.M. No. 1873/L of 1992). Mr. Zaliid Hamid, Advocate for Applicant (in C.M. No. 1937/L of 1992). Malik Fazal Hitssain, Advocate for Applicant (in C.M. No. 1892/L of 1992). Date of hearing: 5.4.1993. order This order will dispose of three identical applications, C.M. 1873/L-92, C.M, 1892/L-92, and C.M.1937/L-92, each filed under section 316 of the Companies Ordinance, 1984 seeking leave of this Court to proceed with the money suits brought by the applicants against M/S Shaafi Woolen Industries Ltd. the company under liquidation which suits are pending before the Banking Tribunals at Lahore and Peshawar. 2. C.M. 1873/L-92 relates to the suit for the recovery of Rs.2,40,90,635.52 filed by United Bank Ltd. Lahore against the company under liquidation and seven directors/guarantors. This suit was instituted on 14.3.1992 and is pending adjudication before the Banking Tribunal, Lahore. C.M.1892/L-92 seeks leave in respect of the following two suits filed by United Bank Ltd. Township, Khalabat (District Haripur) branch against the company under liquidation and 23 others including the directors/guarantors pending before the Banking Tribunal, Peshawar:- i. Suit for the recovery of Rs.3,57,64,728.36 instituted before the Banking Tribunal, Peshawar on 5.5.1992. ii. Suit for the recovery of Rs. 1,98,22,263.00 also instituted before the Banking Tribunal, Peshawar on 21.10.1991. Third application C.M-. 1937/L-92 pertains to suit No. 136 of 1992 filed by Regional Development Finance Corporation against the company under liquidation and three guarantors for the recovery of Rs,26,72.57LOO. This suit was instituted before the Banking Tribunal, Lahore on 1.3.1992. 1. These applications have been opposed by the Official Liquidator mainly on the ground that if the permission sought is granted to the applicants, they may claim preference over other creditors. An objection has also been taken with respect to the suits pending before the Banking Tribunal, Peshawar that since the Official Liquidator is under legal obligation to defend the suits, he will have to incur a lot of expenses on travelling, hotelling, boarding and lodging in pursuing the said suits which will be a great burden on the assets of the company and consequently on the creditors including the applicant. 2. It has been submitted on behalf of the applicants that all of them are secured creditors as they had advanced loans/credit facilities to the company under liquidation against the security of hypothecation/pledge of the goods of the company and as for the loans/facilities extended by the United Bank Ltd. Township, Khalabat, the company had also furnished additional security by way of mortgage of immovable properties. It is accordingly argued by the learned counsel for the applicants that being secured creditors, the applicants can rely on their securities which they can enforce in their suits and they cannot be compelled to prove their debts in the liquidation proceedings. According to the learned counsel, leave to sue or to proceed with the suit already filed is generally granted to a secured creditor more so when the company is not the soie defendant but the guarantors are also added as co-defendants as is the position in the instant cases. 3. It is not denied that the applicants are the secured creditors. Law is fairly well settled that a person claiming to be a secured creditor cannot be compelled to prove his debt in liquidation. He can stand outside the winding up proceedings and rely upon a security and when such a person asks for leave to sue, the prayer should ordinarily be granted, unless there are special grounds to support the contrary course. Refer Jlie Punjab Pulp and Paper Mills Limited (AIR-1932 Lahore 475). Similar view has been expressed in re; Capt: Muhammad Aqeel Siddiqi and 2 others reported in PLD 1988 Karachi 72. It was held in that case "In any case, where a suit to enforce a mortgage or security upon the company's property is filed normally leave to proceed with the suit is granted particularly in cases where a guarantor or guarantors are also joined as parties to the suil because presence of both the company in liquidation represented by liquidator and guarantor or guarantors is cither necessary or proper in order to effectually and completely decide all questions involved in the suit", fit re: Marine Investment Co. (1868) L.T.535, it was held that in cases where the company is a necessary party to the action, but there are other defendants as well, the Court generally grants leave. Refer PLD 1964 (W.P.) Lahore 326. 6. In view of the position aforestated, the applicants appear to be entitled to the grant of relief prayed for by them. As regards the objection of the Official Liquidator regarding the expenses to be incurred in pursuing the suits pending before the Banking Tribunal, Peshawar, suffice it to observe that leave cannot be refused on this ground alone and in any case, the Official Liquidator is not required to visit Peshawar on each and every date of hearing. He can engage a counsel from Peshawar to defend the suits, if not already engaged. In view of what has been said above, all the three applications are allowed and the applicants are granted leave to proceed with their respective suits but this will be subject to the following conditions:- 3. The result of the suits shall be reported to this Court soon after the decision of the suits. 4. That the decree if any passed in favour of the applicants shall not be executed against the company under liquidation/liquidator without the orders of this Court, and 5. in case the suits are decreed with costs, the decree holders will not claim the same against the company under liquidation/liquidator. In fact the learned counsel for the applicants have undertaken that they will not recover any such costs. (MBC) (Approved for reporting) petitions accepted

PLJ 1993 Lahore 454 PLJ 1993 Lahore 454 Present: ZIA MAHMOOD MiRZA, J MALL DEVELOPERS (PVT.) LTD.-Petitioner versus JOINT OFFICIAL LIQUIDATORS, MILLY LEATHER INDUSTRIES LTD. (Under liquidations-Respondent Civil Misc. No. 229/L of 1993 in Civil Original No. 37 of 1986, dismissed on 27.6.1993. Civil Procedure Code, 1908 (V of 1908)- —O. XXI R.94~Auction purchaser—Sale certificate issued in favour of— Cancellation of sale certificate and then issuance of same in favour of his nominee-Prayer for--Provision of Order XXI Rule 94 of CPC clearly shows (Zia Mahmood Mirza, T) that certificate of sale can be issued only to an auction purchaser in whose favxMir. sale is confirmed by court and not to a third person-If auction purchaser wants that property purchased by him be transferred in name of another person, he can do so through a proper sale-deed executed and registered in accordance with law and not by getting his name substituted in certificate of sale-Held: Sale certificate was rightly granted to auction purchaser and Court has no power either to cancel it or to issue a fresh certificate of sale to a third party-Petition dismissed. ' [Pp.456&457]A&B AIR 1938 Allahabad 471 rel. 5/i. Elisan Ahmad, Advocate for Petitioner. Mr. Muhammad Ashiq Rajput, Joint Official Liquidator. Date of hearing: 27.6.1993. order Humayun Akhtar Butt, one of the directors of M/S Mall Developers (Pvt) Ltd has filed this application for issuance of certificate of sale/Sanad-e-Sultani in the name of Mall Tanneries and Leather Works (Pvt) Ltd. Karachi. Facts relevant for the disposal of this application briefly are that the Mall Developers (Pvt) Ltd. gave the bid of Rs.6 millions for the purchase of entire assets consisting of land, building and machinery etc. of M/S Milly Leather Industries, the company under liquidation. This being the highest bid/offer was approved by this Court vide order dated 6.11.1989. The purchaser/bidder paid the entire hid amount whereupon sale of the assets aforementioned was approved by this Court on 29 5.1990 with the direction that "possession of the property sold shall be delivered to M/S Mall Developers" and the Joint Official Liquidators shall take final steps for the transfer of title to them. It appears that the auctionpurchaser requested on 2.11.1991 for issuance of Sanad-c-Sultani but the O.Ls took the stand that there should be a formal registered sale-deed requiring payment of not only the stamp duty but also the registration fee. Matter was adjourned to examine "if the^auction conducted under the auspices of the High Court required any stamp duty or for that matter the registration fee". On the next date of hearing viz; 17.11.1991, the court without going into the question aforenoted ordered "Court certificate may issue in favour of the auction-purchaser without any delay ". The sale certificate under Order 21 Rule 94 C.P.C was accordingly issued in the name of the auction-purchaser namely M/S Mall Developers (Pvt) Ltd. on 28.11.1991. The applicant has now come up with the instant application requesting that "the requisite sale ccrtif\ca.tc/Sanad-e~Sultani may kindly be issued in the name of M/S MALL TANNERIES AND LEATHER WORKS (PVT) LTD. Karachi and the Sanad Sultani/Sah Certificate already issued in the name of Mall Developer (Pvt) Ltd. dated 28.11.1991 may graciously be cancelled". It is averred in this application that the company in whose name the sale certificate is now sought to be issued was formed by the directors of M/S Mall Developers and that the directors of both the companies are the same. It is also pointed out in this application that it was one of the terms of the bid/offer approved by this Court that" the final conveyance deed would be executed in favour of the Mall Developers (Pvt) Ltd. or its nominee". The application has been opposed by the J.O.Ls who have filed reply thereto contending that the sale certificate was rightly issued in the name of the auctionpurchaser, the Mall Developers and if the purchasers are interested in transferring the assets, the subject matter of the sale certificate, in the name of Mall Tanneries and Leather Works (Pvt) Ltd. they should transfer the same in accordance with law i.e., by executing a formal sale-deed. I have heard the applicant and his counsel. They have heavily relied upon the afore-noted term of the offer of the bidder-company and contended that in view of the said term which was incorporated in the order of this Court dated 6.11.1989, the sale certificate could well be issued in the name of the nominee of the auction-purchaser. The learned counsel has further submitted that the applicant, a director of the Mall Developers, the auction-purchaser had in fact requested the Company Judge through letter dated 19.3,1991 to issue the sale certificate in the name of the Mall Tanneries and Leather Works (Pvt) Ltd. Karachi but the certificate was erroneously issued in the name of the Mall Developers. I have given my anxious consideration to the submissions made by the applicant and his counsel. The sale certificate is granted under Order 21 Rule 94 C.P.C. which reads as under:- "94. Certificate to purchaser. —-Where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute". The provision afore-quoted quite clearly shows that the certificate of sale can be issued only to an auction-purchaser in whose favour the sale is confirmed by a Court and not to a third party. If the auction-purchaser wants that the property purchased by him be transferred in the name of another person, he can do so -- through a proper sale-deed executed and registered in accordance with law and not by getting his name substituted in the certificate of sale. It was so held in Makkan Lai Kela and another v. Baldeo Prasad and others (AIR 1938 Allahabad 471). Reference may usefully be made to the following observations therein:- "Having regard to the provisions of R.94,0.21, the Court will issue the sale certificate only in the name of auction-purchaser or if he dies in the name of his legal representative. But the Court is incompetent to recognize any transfer or arrangements made by the auction-purchaser with a third person If the auction-purchaser wants to dispose of his interest in (Zia Mahmood Mirza, J) the estate purchased by him then he can do so by executing a valid sale deed'. To view of the legal position aforestated, sale-certificate was rightly granted t? the auction-purchaser namely the Mall Developers in whose favour the sale was confirmed and who had paid the entire sale price of the assets sold. I am afraid, there is no power in this Court either to cancel the sale-certificate competently and validly issued to the aucton-purchaser or to issue a fresh certificate of sale to 3. third party. Needless to observe that if the auction-purchaser wants to have the assets forming the subject matter of the court-sale transferred in the name of another company, it can do so by executing a.proper sale-deed which would involve payment of stamp duty and registration fee. Even according to the aforereferred term of the bid/offer relied upon by the applicant, only a deed of conveyance could be executed in favour of the nominee of the auction-purchaser. It may pertinently be observed that a sale certificate is not the same thing as the deed of conveyance. It is axiomatic that the sale certificate is not a title deed but only an evidence of title. It is thus not required to be stamped or registered. Thus viewed from whatever angle, a sale certificate cannot be issued in the name of the Mall Tanneries and Leather Works (Pvt) Ltd. Karachi. In view of what has been said above, this application is not maintainable and the same is accordingly dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Lahore 457 PLJ 1993 Lahore 457 Present: ZIA MAHMOOD MlRZA, J FEROZE DIN-Petitioner versus MUHAMMAD AMIN and 4 others-Respondents Writ Petition No. 3534 of 1992, accepted on 4.5.1993 Civil Procedure Code, 1908 (V of 1908)-- —S. 115 read with Order XVI Rule l(2)-Comparison of thumb impressions on documents and summoning of Expert-Application for-Dismissal of application and revision against-Challenge to-Whether order declining to allow production of evidence did not amount to "case decided"--Question of- Heid: Order of trial court rejecting application for sending documents to Forensic Science Laboratory for comparison of thumb impressions thereon and for summoning concerned Expert for evidence, amounted to a "case decided" within meaning of Section 115 CPC and was, therefore, amenable to correction in exercise of jurisdiction under Section 115 C.P.C.-Petition accepted and case remanded for decision of revision petition on merits. [P.460]A&B PLD 1964 Karachi 149, PLD 1973 SC 507 and 1976 SCMR 350 rel. Mr. Muhammad Ashgar Chaudhry, Advocate for Petitioner. Ch. Bashir Ahmad, Advocate for Respondents 1 to 3. Date of earing: 4.5.1993. judgment Facts necessary for the disposal of this constitutional petition, briefly stated, are that the petitioner, a defendant in a pending suit, filed an application under Order XVI rule 1(2) read with Section 151 of the Code of Civil Procedure before the trial Court praying that two mortgage deeds executed by Taj Din in his favour (execution whereof was admitted by the plaintiffs) and a sale deed dated 6.2.1976 which, too, was allegedly executed by Taj Din, but execution whereof was denied by the plaintiffs "be sent to Forensic Laboratory, Lahore, for comparison of thumb impressions, for their examination and report "and also for summoning the concerned Expert from the Finger Print Bureau for evidence. The application was resisted by the plaintiffs and was finally dismissed by the learned trial Judge vide order dated 23.2.1991. Petitioner challenged this order in a revision which was dismissed by the learned Additional District Judge on the short ground that it was not maintainable as the order allowing or declining to allow production of evidence did not amount to a 'case decided'. Order of the learned Additional District Judge dated 31.3.1992 has been brought under challenge in this constitutional petition. (a) I have heard the learned counsel for the parties. Learned counsel for the petitioner relied upon Rahman Dad Vs. Sajawal Khan (1976 SCMR 350) to contend that when a Court finally decides a question as to whether a party is entitled to produce evidence, it amounts to a 'case decided' and a revision petition against such an order is competent. It was submitted by the learned counsel that the petitioner's application for procuring a report with respect to the execution of the documents relied upon by him and for producing the Handwriting Expert to prove the report having been finally dismissed by the trial Court, such dismissal amounted to a 'case decided' within _the purview of Section 115 of the Code of Civil Procedure, which could well be challenged in revision as held by the Supreme Court in the judgment afore-referred. (b) Learned counsel for the respondents, on the other hand, relying upon Zafar Jqbal Vs. Bashir Ahmad Khan (PLD 1987 Lahore 650) sought to contend that an order refusing to allow the production of additional evidence was not a 'case decided' within the meaning of Section 115 C. P. C. and, therefore, no revision lay against such an order. The case cited by the learned counsel for the respondents as will be shown presently is not of much help to him. In the precedent case, the revision petition which was directed against the order of the trial court rejecting the application of the plaintiffs/petitioners therein to produce a cassette in evidence was dismissed mainly on the ground that the request of the petit loners to produce that very cassette had been disallowed by the trial court at an earlier stage of the litigation against which they filed a revision petition which, roo. was dismissed by the High Court and their petition for leave to appeal was also dismissed by the Supreme Court. It was, therefore, held in the precedent case "what has been refused by the highest court cannot be permitted. It can have the effect of rendering the order of the highest court in-effective. This, of course, is not permissible". Having come to this conclusion on the peculiar facts of that case, the learned Judge also proceeded to accept the contention raised on behalf of the respondents as to the incompetency of the revision petition against the order refusing to admit additional evidence which contention was based on the following observations of the Supreme Court made in the case of Nawabzada Malik Habibullah KJian Vs. Vie Pak. Cement Industries Limited and others (1969 SCMR 965):- "An order admitting or declining to admit evidence oral or documentary does not amount to a 'case decided' within the purview of Section 115, C. , P. C. The High Court could not, therefore, interfere with the order of the trial court in exercise of its revisional jurisdiction". 4. It may pertinently be pointed out with respect that in the case of Habibullah, the order of the trial court which was un-successfully assailed before the High Court in revision under Section 115 C. P. C. and the leave to appeal was also refused by the Supreme Court was one of permitting certain documents to be placed on the record and not declining to admit them in evidence. In the circumstances, reliance by the respondents in the precedent case on the aforereferred observations of the Supreme Court was not quite apt. In fact, the Supreme Court itself abserved in its order passed in the review petition in that very case that the petition for leave to appeal was dismissed "on the view that the order permitting the respondents to place on record certain documents did not constitute a 'case decided' within Section 115 C. P. C. to warrant interference by the High Court". Refer Nawabzade Malik Habibullah Vs. Tlie Pak. Cement Industries Limited and others (1968 SCMR 864). It appears that this later view of the Supreme Court was not brought to the notice of the learned Judge who decided the case of Zafar Iqbal. Be that as it may, the controversy as to the meaning of the phrase 'case decided' has since long been set at rest and the view taken by the majority of the Full Bench of seven Judges of the High Court of West Pakistan in S. Zafar Ahmad Vs. Abdul KJialiq (PLD 1964 Karachi 149) has been accepted as correct, namely, that Section 115 C. P. C. would be attracted if a court subordinate to the High Court has given a decision in respect of any state of facts after judicially considering the same even though such decision does not dispose of the whole matter or suit pending before the subordinate court. Refer Bashir Ahmad Vs. Qaisar All (PLD 1973 SC 507). Applying the aforesaid test, it would appear that the order of the trial court rejecting the application of the defendant/petitioner for sending the documents mentioned therein to Forensic Laboratory for comparison of thumb-impressions thereon and for summoning the concerned Expert from the Finger Print Bureau for evidence amounted to a 'case decided' within the meaning of Section 115 C. P. C. and was, therefore, amenable to correction in the exercise of the revisional jurisdiction if it otherwise fell within the ambit of any of the clauses of Section 115 C. P. C. This view also finds support from the afore-referred case of Rehman Dad wherein the High Court repelling the objection that the order assailed before it in revision did not amount to a 'case decided' held that since the impugned order of the trial court had finally decided the question as to whether a party was entitled to produce evidence, it did amount to a 'case decided' and this view was upheld by the Supreme Court observing that it was not open to any legitimate exception. - , In the aforesaid view of the matter, I hold that the revision petition filed by the defendant/petitioner against the rejection of his application was competent. The impugned order of the learned Additional District Judge holding to the contrary is accordingly declared to be without lawful authority and of no legal effect with the result that the petitioner's revision petition shall be deemed to be pending before the learned Additional District Judge who shall decide the same on merits and in accordance with law. Writ petition is allowed in these terms with no order as to costs. (MBC) (Approved for reporting) Petition accepted

PLJ 1993 Lahore 460 PLJ 1993 Lahore 460 Present: mian NAZIR AKHTAR, J OKARA FLOUR AND GENERAL MILLS, OKARA, through its General Manager—Appellant versus PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION, LAHORE, and another-Respondents F.A.O. No. 93 of 1982, dismissed on 21.7.1993. Provincial Employees Social Security Ordinance, 1995 (W.P. Ord. X of 1965)- —-S. 20 read with Section 57-Social security contribution of appellant's establishment-Demand of-Complaint against-Dismiftal of complaint-­ Challenge {o—Pallaydafs employed through contractor for stitching, loading and unloading of bags certainly performed duties in connection with business of appellant mills—It is established on record that business of appellant mills goes on throughout year—Contractor obtains payment on fortnightly basis from appellant for paying wages to pallaydars--HK\d: Assessment of contribution has been reasonably made from available record including cash books and bills of contractor showing payment to employees every month—Appeal dismissed. [Pp.462&463]A.B&C 1989 SCMR 888 rel. Mr. Zafar Iqbal Chaudhry, Advocate for Appellant. Mr. Iftikhar Ahmad Dar, Advocate for Respondents. Date of hearing: 21.9.1992. judgment The appellant has assailed the orders dated 17.1.1982 and 9.5.1982 passed by the Director Social Security and the Social Security Court respectively. 2. The brief factr of the case are that the petitioner is a notified establishment and respondent No. 1 put up a demand of Rs. 400 plus Rs. 200/- per month on account of contribution for Social Security. The appellant filed a complaint under Section 57 of the Provincial Employees Social Security Ordinance, 1965 before the Institution (Director) which was dismissed vide order dated 7.1.1982. The petitioner's appeal was allowed and the case was remanded to the Director with an observation that the parties be given an pportunity to adduce evidence to substantiate their pleas. Accordingly the parties were allowed to produce evidence and thereafter the complaint was dismissed on merits vide order dated 17.1.1982. Again the appellant preferred an appeal before the Social Security Court which was dismissed vide order dated 9.5.1982. 3. The appellant's learned counsel contends that the appellant had assigned a contract for employing casual labour for stitching wheat bags and for loading and unloading the same. Hence, no payment was legally due on account of contribution to Social Security. Placing reliance on Pakistan Tobacco Co, Ltd. v. Punjab Employees Social Security Institution (PLD 1978 Lah. 704) he contends that no contribution is payable in respect of casual workers who are not engaged in the basic work or business of an industry/establishment. 4. Learned counsel for the respondents contends that the appeal before this court under Section 64 of the Provincial Employees Social Security Ordinance, 1965, lies only on a substantial question of law. He submits that in the present case the sole question of law whether the employees engaged by the contractor were employees under the owner of the industry, has been finally settled in the case of Sind Employees Social Security Institution v. Consolidated Sugar Mills Limited (1989 S.C.M.R 888). As regards the other question pertaining to wages, number of workers -and hours of duty, being the question of fact cannot be agitated in the present ap'peai. He further submits that the appellant did not maintain proper record in respect of the workers/employees engaged by the contractor. However, the assessment of contribution in the present case was made in the light of some relevant record of the appellant including cash book, bill of contractor showing payment to the employees every month. He refers to order dated 17.1.1982 passed by Mr. A.S.Farooqi, Director C.M.P (Punjab Social Security Employees) in which the material on the record was discussed for assessing the contribution payable by the appellant. He adds that the list of the persons employed by the appellant-mills was never provided to the Institution. Hence, the question of providing the requisite facilities So them did not arise in the case. 2. In reply the learned counsel for the appellant submits that the above referred judgment is distinguishable on facts. He points out that contribution can be demanded by the respondents on proving that the daily workers had to perform their duty for 24 hours regularly in a week. He also points out that the department has to show the facilities provided to the labour. In the present case, no facilities were provided to the labour. 3. There is considerable force in the arguments raised by the respondent's learned counsel. The important question of law whether the owner is liable for contribution u/s 20 of the Ordinance in respect of the employees engaged through a contractor has since been decided by the Hon'ble Supreme Court in the case of Sind Employees Social Security Institution. The relevant portion of the judgment is reproduced as under:- "In this context of these definitions the charging provision (Section 20) leaves no manner of doubt or ambiguity. Employer has been defined to mean the owner and the owner has been charged under Section 20 for contribution. Even where the owner does not fall strictly within the definition of an employer as in the case of State undertaking or an owner of a plot over which he wants to get a building constructed through the Contractor, the liability under the Ordinance has been cast on the State under subsection (9) and on the owner of the building under subsection (8) of Section 20. Such extension cannot be interpreted as to imply the exclusion of other owners defined as employers but as including them within the charging provisions. Reading these provisions together the conclusion is inescapable that the owner of the industry is liable for employees engaged for his industry even through the contractor. The contention that the contractor should be taken to be employer and .not the owner, as expressed in the agreement with the contractors and made liable for the contribution, cuts across the scheme of the statute where it was intended by law to make the Contractor, the employer, the statute made provision for it directly (State undertakings—Section 2(9) or indirectly (Section 20(8) and Section 20(9). By construction or interpretation if the courts were to introduce such contractors also as employers on the basis of contracts or otherwise, then the Court would be'rewriting the law itself. Such an interpretation being in derogation of (Mian NazirAkhtar, /) the express provision that "in every other case" it is the owner who is to be the employer". ~. The pallaydars employed through the contractor whether for stitching the -jzs rr for loading and unloading the filled bags certainly performed duties in :. n-cction with the business of the appellant mills. Their welfare and security is the .:?ncern of the appellant and he is liable under the law to pay Social Security r.'r.T'ihution for the workers /pallaydars employed through the private contractor. It r.A> been esiablished on the record that the business of the appellant mills goes n throughout the year and workers are employed to load and unload the wheat ~i£5 The Contractor obtains payment on fortnightly basis from the appellant for ra>ir.c wages of the pallaydars. It is not believable that every day the contractor employs new pallaydars and that no one continuously works for 24 hours in a week. The factum of payment on daily basis does not necessarily mean that the employee works only for one day. A person may receive payment daily and continue his work throughout the month or even the year. Since pallaydars are •a .irking in connection with the business of the mill throughout the year the appellant could be legitimately called upon to pay social security contribution. More so when the appellant has been earlier paying the contribution but discontinued it without any legitimate cause. The assessment of the contribution r.ji Seen reasonably made from the available record including the cash books and H1N of the Contractor showing payment to the employees every month. . For the foregoing discussion, I do not find any merit in this appeal which I ;- dismissed leaving the parties to bear their own costs. MSC (Approved for reporting) Appeal dismissed.

PLJ 1993 Lahore 470 PLJ 1993 Lahore 470 Present: MlAN ALLAH NAWAZ, J. . ROSHAN DIN-^-Petitibner versus FATEH DIN and another—-Respondents ' "' : Civil Revision No.1322 of 1990, accepted on 28-7'1993. Civil Procedure Code, 1908 (V of 1908)- —-S.I 14 read with Order XLVII Rule 1 and Constitution, of Pakistan, 1973, Article 185-Review petition-Dismissal of-Challenge. tOt-Whether appellate court had incorrectly declined to exercise review jurisdiction-Question pf-If subordinate court,overlook^, or ignores, or. does.not follow enunciatiQn oi law made by superior judiciary, it is a good ground fpr review-Subordinate courts are bound to follow enunciation of law by Supreme Court, under Article 185 of , Constitution-Heid: Iir Sardar All's case, it was held thalt decree-holdet was entitled to defend decr'ee of pre-emption if passed before target date pfescribea in Saiti Kamal's case, 'and in view of this legal position, appellate court was bound to decidft appeal as well as review application oh touchstone laid down in Sardar All's case-Revision accepted and case remanded to Trial Court with direction to decide suit afresh within parameter of remand order passed on 22-12-1986, by appellate cburt. [Pp,471,475&476 ]A,B.C& PLJ 1986 SC 576,and PLJ 1988 SC 224. PLD 1958 Kar, 75, PLD 1973 SC 110 and PLD 1991 SC 905 rel. Mian Ghulain Rasool, Advocate; for Petitioner. Oi^tttaullali, Advocate for Respondents. , Date of hearing: 3-5-1993. judgment The only point raised and falling for determination in this revisional application is as to whether the appellate Court, on the circumstances of this case had. incorrectly declined to exercise review jurisdiction under Section 114 read ' with Order XLVII Rules 1 & 2 CPC. 2. . The facts, necessary for the purpose of disposal of this Civil Revision are a few and are not in dispute. These are: That Roshan Din, herein applicant, sued for pre-empting a sale of suit land (described in the plaint) made through the registered sale deed dated 24-2-1977. It was alleged therein that the applicant was co-sharer in Joint-KJiata in which the suit land was situated and was brother of the • vendor; that the applicant, thus, possessed superior right of pre-emption as against the vende.e/defcndant Fateh Din. Meanwhile Fateh Din made the sale of the suit land in favour of Bashir Hussain/second vendee. The suit was resisted. On 21-10- 1984, the learned trial judge decreed the suit ex-pane. On appeal, the learned appellate Cpurt se^ aside the decision of the Court-below and remanded the case to the trial Court for decision afresh on merits. Pursuant to the order of remand, the learned trial Judge again decreed the suit vide decision dated 22^7-1986. Feeling Aggrieved frorn this decision Bashir Hussain/second vendee preferred appeal which was accented by the learned appellate Cburt vide decision dated 22- ] 2-1986, the case was remitted by means of this order in following terms: "For the foregoing reasons the appeal is accepted, the case is remanded "to the learned trial Court with the direction that it shall determine actual ' valuation of the plaint and get an amended plaint from the plaintiff and then -'shall proceed to decide the suit in accordance with law, after recording "evidence to'tte produced by the parties, if any in this behalf. Parties to suffer the costs. Present: Parties %nlh counsel, they are directed to appear before the learned trial Court on 7-1-1987. ' Pursuant to this order of remand, the learned first Court dismissed'the suit on 19-4-1987 by Tioldirig that as r\o decree was passed in favour of applicant before 1-7-1986'as laid down in Said Kamal's case (PLJ 1986 SC 576), the Court had no longer power to decree the suit. Against this order, the applicant preferred an appeal which was dismissed by the appellate Court vide order dated 3-6-1987. Unrelenting applicant did, not abandon his case. He filed a review application in the appellate Court on 28-6-1987 stating therein that the suit instituted by the applicant was decreed ex-pane as back as on 21-10-1984 and, therefore, it was not governed by thii rule laid down in Said Kamal's case. The learned appellate Court did not see eye to eye with the argument of the applicant and dismissed the review petition This is how, this rcvisional application has come to this Court. . 4 The Lamed counsel for the applicant in support of this application raised the following contentions: Firstly; that the learned Addl.District Judge had not taken into consideration that the trial Judge had dismissed the suit on 19-4-1987; that the learned appellate Court dismissed the appeal on 3-6-1987, that the applicant had filed review application on 28-6-1987 within the period prescribed by Article 162 in Schedule to Limitation Act; that the Supreme Court rendered the decision in Sardar Ali vs. Muhammad Ali (PLJ 1988 SC 224) on 4-5-1987; that on 20-5-1990 the learned appellate Court" was bound to render the decision in confirmity with the rule laid down in Sardar All's case supra. On these premises it was vehemently contended that the learned appellate Court was bound under the law to review the decision dated 3-6-1987 and give effect to the law enunciated by the Supreme Court in Sardar Ali's case. Reliance was placed on Muhammad Rafique Vs. Mst.Rashida Begum (1979 CLC 823) and Fazal Din Vs. Barkat Bibi (PLD 1978 Lah. 1016).' Secondly; that the decision rendered by the learned appellate Court was on the face of it contrary to law and merits to be set aside in revisional jurisdiction. 5. On the contrary the learned counsel for the respondents, supported the impugned order by contending that the decision in Sardar All's case was rendered by the Supreme Court on 4-5-1988; that the learned trial Judge had dismissed the suit on 19-4-1987; that the appellate Court had dismissed the appeal on 3-6-1987. On the basis of these circumstances it was urged that Sardar All's case was rendered subsequently and the learned appellate Court was correct in giving effect to the rule laid,down in Said Kamal's case supra. According to the learned counsel the subsequent enunciation of law by the Supreme Court could not be treated as a ground within the frame work of Order XLVII Rule 1 CPC. Reliance was placed on KJian Muhammad. Vs. Gliulam Rasoql (NLR 1987 Civil 101) and Rashir Ahmad Vs. Pia'ra KJian (PLJ 1992 SC 173).'- 6. From the above narration, as remarked in the first paragraph of this judgment, the only question arising for decision is whether the appellate Court was bound under Article 185 of the Constitution to give effect to rule laid down in Sardar Ali's case. The answer to this question is free from difficulty. The power of review of the Courts is undoubtedly governed by Section 114 read with Order XLVII Rule 1 CPC. These provisions came up for consideration before a Division Bench of West Pakistan High Court in Muhammad Mian Vs. Pakistan (PLD 1958 Kar. 75). In this case.Muhammad Khan petitioner was a permanent Head Constable. On 2-11-1953 he was charge sheeted 'by the Superintendent of Police and was subsequently reverted to the rank of his previous post. Feeling aggrieved, he preferred an appeal 4o the Chief Commissioner, Karachi but in vain. He thereafter filed a writ petition which was dismissed by the Division Bench of the High Court of West. Pakistan comprising of Sir George Constantino and Mr Justice Bachal. On 25-4-1956, he lodged an application .for review before the same Bench. After the survey of Order XLVH Rule 1 CPC, the Division Bench admitted the application to regular hearing and set aside its previous order in following words: "After our order summarily dismissing the writ petition the judgment of the Supreme Court in Nurul Hassan v. The Federation of Pakistan (PLD 1956 S.C. (PAK) 331 was announced. For the purposes of this case it is sufficient to say that that case laid down that the provisions of Article 181 must prevail unless there is actual repugnancy in the particular law relating to the police. In this case there was no such repugnancy and therefore Mr. Nasiruddin argues that we should have set aside the order of the Inspector General of Police on the ground that he had not given notice to show, cause against the penalty proposed to be inflicted upon the petitioner. Mr.Raymond has argued that the judgment of the Supreme Court is an even which has supervened and should be taken into consideration. But we think it is too well-established a principle, namely, that courts of law do not make law but merely declare the law, for us to consider that a judgment of the Supreme Court has altered the law. What has happened is that we proceeded upon a mistaken view of the law and this appears to be apparent on the face of the record. It is true that our order is not what might be called a speaking order, but we think we can look at the contents of the petition in order to see whether we were justitied in summarily dismissing the petition. We therefore, set aside our order of dismissal and admit the main application to regular nearing. Mr.Nasiruddin does hot claim costs of this petition" The view taken in the above case was noted with approval by the Supreme Court ia Faqir Muhammad Vs. Akbar Shah (PLD 1973 SC 1 10> wherein it was held: . " Learned coonsel for the respondent has conceded that failure to notice . a judgment of the Privy Council or of the Supreme Court may amount to an error on the face of Hhe record, because, such judgments declare the law for all concerned and all subordinate courts are bound to follow that law. I see , no difference, therefore/ in principle between judgments of,fhese courts and the judgment of a Full Bench of a High Court. A judgment of a Full Bench also decides authoritatively for the High Court the point of law referred td it and, therefore, to that extent also declares the -law'with respect to that point. That declaration,' of law is binding on all other Benches iof the High Court until set aside or reversed by another Full Bench of the same High Court or N ,-. by a superior court. Failure to notice such an authoritative decision would, therefore, in my opinion, clearly be an error apparent on the face of record. In a court consisting of only four Judges like the Peshawar seat of the former West Pakistan High. Court, it is difficult to imagine how a decision of a Full Bench consisting of three of the learned Judges of that High Court remained unknown to the fourth learned Judge. I am not, therefore, prepared to accept that because the judgment "of the Full Bench was not reported up to the time the judgment sought to be reviewed was delivered, the learned Judge concerned was not aware of it and, therefore, noi bound to take any notice of it.. The ''"judgment of the Full Bench, so far as the Peshawar Seat of the High Court was concerned, was not x only an authoritative decision but also a well-known decision, which should have been followed. We are, therefore, unable' to"agrce with the learned Single Judge, that the review petition was not maintainable. Nevertheless we must also point out that the granting of a review is still in the 'discreliojj of the Court. It is not bound to grant a review even where adequate grounds, exist but the discretion must, as in the case of all judicial discretions, be exercised upon sound judicial principles. This vievy was reiterated by the Supreme Court in Arif Shah Vs. Abdul Hakeem Qureshi (PLD 1991 SC 905), His lordship MrJustice Ajmal Mian, speaking for the Bench, said: "We are inclined to lake view that if a subordinate Cou>,t .ignores a judgment of ,a Superior 'Court to which it is suHordinate, on | a point of law ' " and talces a contrary view,"' it may furnish ' a ground for review of the decree/order. However, it will be too dangerous and too oroad a proposition to lay down that every failure on the part of a subordinate Court,'to take nbitice of a Judgmentof a Superior Court,'to which it is; ' subordinate, will'firnish 4 ground^to Yeview a decree/order though the relevant judgment of the superior Court was not Wought td its notice. It is true that it is the duty of the Couri itself to apply the correct law and a party is not bound to engage a counsel, as has been "held by this Court in the case of .ffoji Abdullah Klian aha' others V. Nisar MUhammad Khan and others (PLD 1965 S.C. 69ft), but a subordinate Court in view of the daily heavy . roster k-not expected, to take upon itself the research work on the case law., However, it is .supposed to know or -to acquire knowledge of the basic principles /of law- involved in Une case-before it for adjudication before rendering its judgment thereupon. In the present case, the proposition'of law propounded by the learned trial Court, white declining the relief of specific performance of the agreement quoted 'hereinabofe,' is contrary to the law enunciated by the superior Courts inter alia in the cases referred to hereinabove''ih. para 11 and founded on Explanation to Section 12 of the Specific ReKef Act 1 read with (he other relevant provisions (hereof. The learned trial'Court did not record any finding of fact'in favour of the respondent which could have-justified declining of specific performance of 7. The survey of the case law on the scope of above provisions will not be completed without making reference to Hashim Klian 's case which was decided by the Division Bench oT'inis Court. In this case the applicant sued for pre-emption on the grounds of being collateral; thai the suit was decreed by the first,Court vide decision dated 4-5-1983. The appeal by the vendee succeeded befpre the first appellate Court on 29-5-1987. The pre-emptor's revision was dismissed.on the ' basis of rule laid down in Said Kamal's case. The pre-emptor filed an application for review on 28-8-1988 within the prescribed period of limitation. The D:visipn Bench of this Court accepted the review petition in view of rule laid spied Sardar All's case and decreed the suit. 5. From the foregoing examination T have no difficulty in holding that if Subordinate Court overlooks/ignores/does not follow the enunciation of law made by the superior judiciary, it is a good ground for review if the review application is brought to that Court within the prescribed period of time. Although no hard or fast rule can be prescribed for the purpose of review jurisdiction, the Court had to exercise its jurisdiction upon the facts and circumstances of each case; yet it goes without saying that Subordinate Courts are bound to follow the enunciation of law made by'the Supreme Court under Article 185 of the Constitution of Pakistan 1973. 6. Applying this principle to the facts and circumstances of this case it is crystal clear that in Said Kamal's case the question raised was "whether Section 15 of Punjab Pre-emption Act and sub-para (3) (d) of paragraph 25 of M.L.R. 115 were repugnant .to injunctions of Islam." ib the aforesaid precedent ,the Shariat Appellate Bench of Supreme Court came to the conclusion that Section 15 of Punjab Pre-emption Act, 1913 and sub para (3) (d) of Paragraph 25 of M.L.R.115 were repugnant to Injunctions of Islam. The effect of. Said Kamal's case was considered in Sardar All's case wherein it was held that (if) any suit instituted under the provisions of Punjab Pre-emption Act, 1913 was decreed before the prescribed date, in Said Kama's case, the pre-emptor/decree-holder, was entitled to defend the decree This being legal position the decision of learned trial Judge dated 19-4-1987 and the decision of learned appellate Court' dated 3-6-1987 are clearly illegal, being in defiance of rule laid .down in Sardar All's case, and the learngd appellate Court was bound to decide the the appeal as well as the review application on, the toucjj/stome laid down in Sardar Ali's case. In these circumstances I .have no option but to accept this Revision petitkm. 10. In the light of foregoing discussion, this revision application is accepted, the judgment and decree passed by Malik Muhammad Akram, Civil Judge-II Class, T.T.Singh dated 19-4-1987, judgment and decree of affirmance passed by Mr. Siddique Javed Chaudhary, Addl. District Judgp, T.T.Singh dated 3-6-1987 are hereby set aside. The order passed .by Mr.Mujahid Hussain, Additional District Judge, T.T.Singh dated 20-5-1990/rcjccting the review application, is also hereby set aside. Result of above is, that the order of remand passed by Mr.Siddique Javed Chaudhary, Additional District Judge, dated 22-12-1986 remains in field. Pursuant to above, the case is remanded to the learned Senior Civil Judge T.T.Singh who is directed to decide the suit afresh after hearing the parties within the para-metre of order of remand dated 22-12-1986. There shall be no order as to costs. (MBC) (Approved for reporting) Petition accepted. THE END

PLJ 1993 Peshawar 35 PLJ 1993 Peshawar 35 [Abbottabad Bench] Present: MUHAMMAD BASHIR JEHANGIRIJ. SARDAR MUHAMMAD and 2 others -- Petitioners versus HAIDER ZAMAN and 3 others -- Respondents Civil Revision No. 130 of 1989, dismissed on 9.1.1993. (i) Limitation Act, 1908 (IX of 1908) Art. 120- Declaratory suit — Limitation for — Whether suit was barred by time ~ Question of ~ Appellate court has erred in holding that since plea of adverse possession was turned down by trial Judge, therefore, no period of limitation would run against plaintiff-respondents — Plea of limitation has got nothing to do with plea of adverse possession - However, it is asserted in plaint that cause of action accrued to plaintiffs about 15/20 days prior to institution of suit — Held: Declaratory relief granted to plaintiff-respondents as well as perpetual injunction, is well within 6 years under Article 120 of Limitation Act and thus suit was rightly held to be within period of limitation prescribed therefor ~ Petition dismissed. [Pp.40 & 41 ]E,F,& G (ii) Possession Declaratory suit — Possession of vacant site in dispute ~ Proof of — It is settled law that when a property is not capable of physical possession or is otherwise not in possession of any other, is deemed to be not in possession of any one - Held: Possession of vacant site or vacant land naturally goes with title of rightful owner and in case of doubt, presumption always is that possession follows title - Held further: Plaintiffs-respondents having been able to prove their title to disputed vacant site, presumption of possession is also in their favour. [P.39 ]D 1981 CLC 251 rel. (iii) Proforma defendants Proforma defendants in suit — Non-impleadment in civil revison of — Effect of— In proper cases, even proforma defendants should ordinarily be impleaded as party to civil revision — In civil revisions, defect of non-impleadment of proforma defendants would not be fatal .if it has not prejudiced rights of parties concerned — Held: Non-impleadment of proforma defendants in revision petition under Section 115 of CPC whose right have been safeguarded by plaintiff-respondents in their plaint, would not render it incompetent or liable to dismissal on that score. [Pp 37 & 38]A PLJ 1989 SC 134 Rel. PLD 1982 SC 46 not relevant. (iv) Title Immovable property — Title to — Proof of — Defendant-petitioners neither asserted nor traced their title to disputed vacant site — It has not been asserted in written statement that defendants or their predecessors were owners in possession of disputed vacant site — They have merely denied ownership and possession of plaintiffs — Held: If a defendant neither asserts in written statement nor is able to prove his origin of title to any immovable property in witness box, then plaintiffs word coupled with some evidence would be enough to dislodge mere denial of plaintiffs title thereto. [Pp38&39 ]B&C PLD 1961 Karachi 173 not relevant, Mr.Saleh Mehmood Awan, Advocate for Petitioners. Sh. Jan-e-Alam, Advocate for Respondents. Date of hearing: 9.1.1993 JUDGMENT This Civil Revision filed by the three contesting defendants is directed against the judgment and decree dated 21.6.1989 passed by the learned Additional District Judge-I, Haripur reversing the judgment and decree dated 8.12.1988 of the learned First Civil Judge, First Class, Haripur, whereby the suit of the plaintiffs had been dismissed. The suit of the plaintiffs was for a declaration of their title to and confirmation of their possession over a vacant site fully described in the title of the plaint and situate in village Sarri, Tehsil Haripur and for perpetual injunction restraining defendants 1 to 3 from interfering in their possession. In the alternative a decree for possession of the said property was prayed for. 2. The plaintiffs case, in short, was that the disputed property was originally related to House No. 102 in which Khalil khan was a co-owner whose predecessor Said Khan was the original owner of the vacant site and then it devolved upon the plaintiffs and defendants 4 and 5 to which the defendants No. 1 to 3 have no concern whatsoever. It is further alleged that defendants 1 to 3 have started interfering in the disputed property about 15/20 days (prior) to their filing of the suit. Hence the suit for the reliefs noted above. 3. Defendants 1 to 3 contested the suit by filing a joint written statement wherein they denied the allegations made by the plaintiffs in the plaint. The defendants have not furnished any details as to how and from whom they derived title to the disputed house. A number of legal objections were also taken up including bar of limitation and their adverse possession having ripened into their ownership. 4. The learned Civil Judge, who tried the suit, having considered the documentary and oral evidence brought on the record by the parties, dismissed the suit of the plaintiffs on a finding that they have not been able to identify the disputed vacant site with House No. 102 as entered in Register Abadi of the village for the year 1872. The suit was also held to be barred by limitation. The plea of adverse possession raised by defendants was, however, not found to have been substantiated by any evidence of the required standard. 5. The plaintiffs appealed against the judgment and the decree of the learned trial Judge and the First Additional District Judge, Haripur, who heard the appeal had reversed the decision of the learned lower Court holding that the defendants having not controverted the description of the suit property (plaintiffs) could not be non-suited on that score. The learned appellate Court further held that as the defendants have not set up any valid title to the suit property nor they have disclosed the source as to how they became owners of the disputed property, therefore, the plaintiffs claim could not be thrown out. On the plea of limitation it was held that the defendants have not all all adverted to the plea of dispossession of the plaintiffs from the vacant site for more than 12 years and as their plea of adverse possession has been turned down, therefore, no period of limitation would run against the plaintiffs in the case. 6. The defendants have, therefore, preferred this Civil Revision to challenge the judgment and the decree of the learned Additional District Judge. 7. Mr. Saleh Mahmood, Advocate appearing on behalf of the Is defendants-petitioners, convassed before me three points for consideration in this petition. First contention of Mr. Saleh Mahmood was that the learned District Judge has mis-read and mis-interpreted the evidence on record .particularly on the point of possession of the defendants over the site which has been admitted by Dilbar Khan P.W.3; secondly, that as the plaintiffs were out of ossession of the property for more than 12 years prior to the date of filing the suit he should have in view of the provisions of Article 142 of the Limitation Act, dismissed the suit of the plaintiffs and thirdly; he contended that the best evidence would have been of the plaintiffs themselves who failed to appear in the witness box to stand the test of cross-examination and that in any case the weakness of the defendant's case does not prove the case of the plaintiffs. 8. Sheikh Jan-e-Alam, learned counsel for the plaintiffs, on the other hand, raised a preliminary objection to the competency of this revision on the ground of non-impleadment of defendants-respondents 4 and 5 in this revision. In this context reliance was placed on the precedent case of: "Mst. Maqbool Begum etc. V. Gullan and others" (P.L.D 1982 S.C.46). The case of Mst. Maqbool Begum relied upon by the learned counsel for the plaintiffs-respondents is relevant to the appeals, wherein non-impleadment of necessary parties in a decree, appealed from j by some of the defendants is joint and indivisible against all the defendants. In the j case of civil revision such a defect would not be fatal if it has not prejudiced the ' rights of the parties concerned. It is settled law that the question of defect of j procedure is always not the question of prejudice unless there is violation of some I strict statutory provisions as a result whereof proceedings are vitiated. Again the ' proper place of procedure in any System of administration of justice is to hold and not to thwart the grant to the people of their rights. In "Nishat Mills Ltd. V. \Central Excise Circle II and three others (P.L.J 1989 S.C. 134) a salutary guideline was laid down that" all technicalities have to be avoided unless it be essential to comply with them on the ground of public policy: that any system which being given effect to the form and not to the substance defeats substantive rights is defective to that extent: and finally that the ideal must always be a system that gives to every person what is his". In the circumstances it is my considered view that non-impleadment of proforma defendants in revision petition under Section 115 of C.P.C whose rights have been safeguarded by the plaintiffsrespondents in their plaint would not render it incompetent or liable to dismissal on that score. This, however, may not be stretched to absolve the parties concerned to implead even the proforma defendants. In proper cases even proforma defendants should ordinarily be impleaded as a party to the civil revision. 9. It is, however, a fact that the defendants-petitioners have neither asserted nor traced their title to the disputed vacant site in any manner whatsoever. Consequently, the law laid down in the case of "Muhammad Amin and others V. Muhammad Bakhsh and others" (P.L.D. 1961 Karachi 173) and cited by the learned counsel for the defendants-petitioners does not support the petitioners that it is for the plaintiff to prove his case and if he is able to prove it then it is the duty of the defendants to establish that the title set up by the plaintiff is not true. In this case the learned appellate Court has pbserved, and rightly so, that the defendantspetitioners have not been able to trace their origin of the title by setting up a definite plea as to whether it was their ancestral property or it has been purchased or gifted to them or was the result of the bequest est. A perusal of the written statement and the evidence on record adduced on behalf of the defendants shows that they have not at all adverted to the origin of the title of the petitioners to the vacant site in dispute. In the written statement, it has not been stated that the defendants or their predecessors were the owners in possession of the disputed vacant site but it is merely denied that the plaintiffsrespondents were the owners in possession of the vacant site. No doubt it is for the plaintiffs to initially prove that they are the owners in possession of the suit property since their forefathers but it does not absolve the defendants from their obligation to clearly specify the origin of their title to the disputed property. If a defendant neither asserts in the written statement nor is able to prove his origin of the title to any immovable property in the witness-box then in so far as the question of title is concerned, the plaintiffs word coupled with some evidence would be enough to dislodge the mere denial of plaintiffs title thereto. 11. Much capital was tried to be made by the learned counsel for the petitioners out of an admission made by Dilbar Khan (P.W.3) that the defendants, taking undue advantage of the plaintiffs absence had occupied the disputed vacant site and have cut the trees. This admission on half of the special attorney for the plaintiffs is not of much consequence firstly, because an erroneous admission would not be enough to deny the relief to which a party is otherwise entitled and secondly, the inference is out of context because it appears that what Dilbar Khan special attorney (P.W.3) intended to convey was that the possession of the plaintiffs had been interfered with by way of cutting the trees standing therein. Be that as it may, it is settled law that when a property is not capable o£ fiscal possession or is otherwise not in possession of any other is deemed to be not in possession of any one. In this context in "Mahboob All V. Amanullah Khan and three others" (1981 CLC 251) Shah Abdur Rashid, J as his Lordship then was, held the view and to which I respectfully subscribe, that the possession of vacant site or vacant land naturally goes with the title of the rightful owner and that in case of doubt the presumption always is that possession follows title. The presemption qua the disputed vacant site, therefore, is that the rightful owner is in possession of such property and as I shall presently show that the plaintiffs-respondents have been able to prove their title to the disputed vacant site, presumption whereof also is in their favour. 12. Survey No. 102 vide extract photo copy Ex. P.W.2/1 from Register Abadi 1872 has been undoubtedly recorded as a land. The objection of the learned counsel that it was not a house in 1872, as alleged is not sustainable. Not only in the plaint but also in the witness box it has been asserted on behalf of the plaintiffrespondents that it was a vacant site measuring 6 and half marlas and not a house which formed a part of survey No. 102. This entire survey Number 102 is duly recorded in the occupation of Said Khan son of Salabat Khan who is proved to be the predecessor-in-interest of the plaintiffs-respondents. The learned trial Judge was not correct to hold that the plaintiffs have not been able to identify this property with survey No. 102 aforesaid. Razaullah Khan Record Keeper (P.W.2) has deposed that the survey No. 102 according to the Register Abadi has remained in occupation of Said Khan son of Salabat Khan who was also its owner. Survey No. 102 consists of three portions 102, 102-Alif and 102 B<rv with definite measurement. Its boundaries as asserted by the Special Attorney of the plaintiffs and those furnished by Razzaullah Record Keeper (P.W.2) prima facie are interse identifiable. The plaintiffs claimed that it forms part of the whole Survey No. 102 which assertion has not been displaced by the opposite party. 13. No doubt the defendants have not been able to assert in the witness-box heir plea of adverse possession which they had taken up in their written statement and is duly reflected in issue No.6. Both the Courts below have also on this score found against the defendants-petitioners. In any case Section 28 of the Limitatio Act has since been struck down on the ground of its being repugnant to the Injunctions of Islam. Reference may be made to the case of "Maqbool Ahmad V. akoomat-e-Pakistan" (1991 -SCMR 2063). 14. I tend to agree, however, with the learned counsel for the petitioners that the learned appellate Court has erred to hold that since the plea of adverse possession has been turned down by the trial Judge, therefore, no period of limitation would run against the plaintiffs-respondents. Every plea has to bebrought before the forums competent to adjudicate upon the rights within the period prescribed by the Limitation Act. The plea of limitation has got nothing to; do with the plea of adverse possession particularly when it has since been struck down. It is well settled law that all the reliefs which a party is held entitled to is isubject to a law of limitation because every litigant s to be vigilent in claiming his rights within the limitation prescribed by law independent of whether there has or has not been a plea of adverse possession. It has, however, to be pointed out that the plaintiffs-respondents have laimed three reliefs: (1) declaration, (2) perpetual injunction and, alternatively (3) the possession. The learned trial Judge has also omitted to refer to any section or article of the Limitation Act (IX 1908) under - which one or more than one of the reliefs claimed by the petitioners were barred by i time. It has been asserted in the plaint and later substantiated by the evidence that ! the defendants-petitioners have interfered in the possession of the disputed acant i site by way of cutting the trees standing therein about 15/20 days prior to the j institution of the suit. This plea of the plaintiffs has been ambiguously denied in the written statement but not at all adverted to in the vidence of the defendants petitioners. The cause of action, therefore, for declaratory relief to which the plaintiffs-respondents appear to have been held entitled accrued to them about ' 15/20 days prior to 15-4-1987 and, therefore, the declaratory elief granted to them as well as of the perpetual injunction is well within 6 years under Article 120 of the Limitation Act and the suit was rightly held to be within period of limitation prescribed therefor. I 15. In the circumstances narrated above, the view taken by the learned appellate Court appears to me to be correct. In any case, it is supported by evidence, therefore, this petition has no merit and merits dismissal with costs which is ordered accordingly. (MBC) (Approved tor reporting) Petition dismissed

PLJ 1993 Peshawar 41 PLJ 1993 Peshawar 41 [D.I.Khan Bench] Present: Muhammad Khiyar, J MUHAMMAD AMIN KHAN and 6 others - Petitioners versus CENTRAL GOVERNMENT OF PAKISTAN, THROUGH CENTRAL BOARD OF REVENUE/CHIEF LAND COMMISSIONER, and 18 others— Respondents Civil Revision Nos.75 and 76 of 1990, dismissed on 16.9.1992 Jurisdiction Land Commission — Resumption of land under MLR 115 — Challenge to — Whether civil court had jurisdiction — Question of — Para 26 of MLR 115 bars jurisdiction of any court including High Court and Supreme Court to call in question proceedings under Regulation or any rules or orders made thereunder -- No court or authority shall have jurisdiction in respect of any matter which Commission is empowered to determine — Question whether a particular transaction is hit by provision of para 25 of MLR 64 is exclusive function of Commission — Held: Impugned orders of lower courts do not suffer from any illegality or material irregularity calling tor interference in revision under Section 115 of C.P.C. -- Petitions dismissed. [Pp 44,45 & 46] A,B&C PL) 1985 SC 202, NLR 1980 Rev. Peshawar 135, PLD 1975 Rev.95 (Sindh), PLD 1968 Dacca 152, PLD 1960 SC (Pak) 113, PLD 1966 SC 84 and PLD 1966 SC \^ discussed. PLJ 1992 Lahore 278 rel. Syed Zafar Abbas Zaidi, Advocate for Petitioners. Mr.Muhammad Khan, Advocate for Respondents 2 to 5. Mr. Muhammad All Jan,. Advocate tor'Respondents 12,14, and 17 to 19. Date of hearing: 7.9.1992. JUDGMENT This judgment shall dispose of two Civil Revision Nos.75 and 76 of 1990, as the common questions of law and facts are involved. 2. In C.R.No.75/90, the plaintiffs/petitioenrs instituted Civil Suit No.219/1 of 1983 against the defendants/respondents claiming declaration therein that they were owner:; in possession of the suit land measuring 600 kanal 4 rnarlas fully described in the heading of the plaint as having been purchased by them from defendants/respondetns 6 and 7 through, a Court decree dated 11/3/1969 passed in Civil Suit No.105/1 on the basis of which mutation No.7345 was attested on 22.5.1971 and that the resumption of land by respondents 1 to 5 under M.L.R. No. 115 and the mutations subsequently attested in favour of defendants 8 and 9 were illegal, void and ineffective oq their rights and that the mutations so attested on the orders of partition in the file Nos.15, 16, 17, 18 and 19 dated 26/3/1979 are void, ineffective and not binding on them. The plaintiffs/petitioners further prayed for permanent injunction restraining the defendants/respondents No.8 to 19 to interfere in their possession. , 3. In C.R.No.76/90, the plaintiffs/petitioners instituted similar suit No.220/1 in the Court of Senior Civil Judge Bannu wherein they prayed for declaration to the effect that they were owners in possession of 289 kanals 12 marlas of land fully described in the heading of the plaint on the basis of consent decree dated 22.5.1969 in suit No. 136/1 and challenged the-mutation attested in favour of defendants/respondents 8 to 13. "In this suit as well, prayer was made for the relief of permanent inj unction 4. The two suits filed by the plaintiffs/petitioners in the Court of Senior Civil Judge Bannu were contested by the defendants/respondents, both on legal and factual grounds. The issues arising out of the pleadings of the parties were framed in the two suits and evidence was also recorded. Finally after hearing the learned counsel for the parties, the trial Court disposed of the two suits on the view that it. had no jurisdiction to entertain the suits in which M.L.R.No. 115 was challenged and without discussing the other issues returned the plaints to the plaintiffs/petitioners under Order 7 Rule 10 CPC for presentation before a competent forum vide judgment dated 27.7.1989. 5. The judgment of the trial Court was impugned in two appeals before the learned Addl. Distt. Judge Barinu who vide judgment dated 5/6/1990 dismissed the two appeals concurring with the view taken by the trial court that the Civil Court had no jurisdiction to adjudicate and entertain the suit. The learned Addl. Distt. Judge was of the view that the suit land being claimed on the basis of consent decree dated 22.5.1969, it was within the sole competency of Land Commission to declare the transaction to be bonqfide or illegal one and that paragraph 26 of M.L.R. No. 115 barred the jurisdiction of the Civil Courts to adjudicate upon any matter in which the Land Commission was empowered. 6. The aforesaid judgments dated 27.7.1989 of the learned Senior Civil Judge Bannu and dated 5.6.1990 of the learned Additional District Judge Bannu are assailed in these two lovisions. 7. S.Zafar Abbas Zaidi, Advocate for the plaintiffs/petitioners and Mr. Muhammad Ali Jan Khan, Advocate for the defendants/respondents addressed arguments. 8. Learned Counsel for the plaintiffs/petitioners contended that the lower Courts have not properly appreciated the application of para 7 of M.L.R.No. 115, as under para.7 subpara (l)(a) of the said Regulation, all transactions were liable to be considered and when the court decree in favour of the petitioners was passed before Kharif 1969, therefore, M.L.R.No. 115 was not applicable. He was of the view that the land could not be resumed as it was not owned by Abdul Sattar. Lastly the contention was that the civil court being the ultimate court of jurisdiction would always come to the relief of aggrieved citizen when an act of a Tribunal or Special Court is challenged to find out whether the act done and orders passed were in accordance with the Statute which created the Tribunal or Special Court. Learned counsel for the plaintiffs/petitioners was of the view that the Court had the jurisdiction to inquire into the matter and, as such, the judgments are liable to be set aside. In support of the contentions, so raised, reliance was placed on the following authorities:- 1. Maula Dad etc. Vs. Ghulam Muhammad etc. (PLD 1978 Baghdad-ul-Jadid 71). 2. SherZaman.. Vs. Muhammad Ishaq etc; (PLJ 1£85 S.C. 202). 3. Umar Khan and another ..Vs. . Land Commr: NWFP & six others; (N.L.R 1980 Revenue Peshawar 135). 4. Mst. Nusrat Begum etc.. Vs. The State. (PLD 1975 Revenue 95 (Sind). 5. Abu Syed Rashid Qtikht Mazumdar Vs. Mutahar Bakht Mazumdar and another.(PLD 1968 Dacca 152) and 6. Zafrul Hassan. Vs.. The Republic of Pakistan through Cabinet Secretary, Government of Pakistan (PLD 1960 S.C. (Pak) 113. 9. Mr. Muhammad Ali Jan Khan, Advocate for the defendants/respondents in reply submitted that the impugned judgments of the Courts below are perfectly valid, for, it is the exclusive jurisdiction of the Land Commission to see whether ;i particular transaction is hit by Paragraph 25 of M.L.R. No. 115 and since the matter in issue in the two suits was whether transfer of the land in favour of the plaintiffs-petitioners was valid, it could only be decided by the Land Commission. Reliance was placed on Nisar Ahmad Khan Versus Mst. Is mat Jehan Begum (1968 S.C.M.R. 667). The learned counsel further contended that the Commission is not bound to act in accordance with the Civil Court decree and the power of final decision in respect of every disputed matter vests in the Commission. The cases reported as Mst. Bibi Ayesha and another vs. The Chief Land Commissioner. West Pakistan and another (PLD 1966 S.C.84), Mst.Hajiani etc. Vs. West Pakistan Land Commission Lahore (PLD 1966 S.C. 114) and Sadiq All versus.. Taj Din and others (PLJ 1992 Lahore 278) were referred.10. I have heard learned counsel tor the parties and have also studied the case law cited at the bar. The Courts have held the view that they have no jurisdiction to adjudicate upon the matter in view of the provision of Martial Law Regulation No. 115. Para 3 of Martial Law Regulation No. 115, (hereinafter referred as Regulation), relates to the restriction on ownership and possession of land. Para 7 sub para (l)(a) of the Regulation declares certain transfers as void. Para . 7 sub para (l)(b) is a saving clause whereby the transfer of any land may be declared valid if the Commission is satisfied that it was a bonafide transaction. Explanation (iii) to para 7 of the Regulation narrates the factors to be taken into consideration by the Commission in determining whether the transaction referred to in clause (b)( 1) was bonafide or not: Para.26 of the Regulation bars the jurisdiction of any Court including the High Court and Supreme Court to call in question the proceedings of Regulation or any Rules or orders made thereunder. No Court or authority shall have jurisdiction in respect of any matter which the Commission is empowered to determine. Keeping in view the aforesaid provision, it is abundantly clear that it is the function of the Commission to determine whether a particular transaction is bonafide or otherwise and the Statute places bar on the jurisdiction of Courts in respect of any matter which the Commission is empowered to determine. This brings us to the arguments of the learned counsel for the petitioners that if the act done or orders passed are not in accordance with the provision of the statute, the Civil Courts will interfere and assume the jurisdiction. That may be true, but the question is whether the Land Commission has violated the provisions of Statute which created the Commission. 1 think no. Plaintiffs/petitioners never approached the Land Commission to tell them that the land could not be resumed as it was not owned by Abdul Sattar. The Land Commission could not take up the matter itself. In the case of ShetZaitit": Vx. Muhammad hhaq etc. (PLJ 1985 S.C. 202), it has been held that there is nothing wrong if plaintiff was referred to Land Commission for resolving the dispute raised before the Civil Court . Further it has been held that though the civil court would be competent to decide the various questions but subject to condition that where the Commission was also competent to determine the matter, final decision shall always remain of the Commission. The authority cited is of no help to the petitioners and instead it supports the contention of the learned counsel for the respondents. In Umar Khan's case (NLR 1980 Rev. Peshawar 135), the order of allotment of the Land Commission was challenged in writ and it was declared illegal and sitting tenant was held entitled to the land. The facts involved were absolutely different. In the case of Mst. Nusrat Begum (PLD 1975 Rev.95 Sind),the decision of the Land Commission was challenged and it was found that the Commission had not followed the principle for determining the bonafide transfer under Para.7 of M.L.R.No. 115. This is exactly what we interpret the Regulation that it is the Commission who would determine the bonafide of the transaction as stated above. Similarly, in the case of Abu Syed-Rashid Bakht Mazumdar (PLD 1968 Dacca 152), the jurisdiction of the Civil Court was held as barred provided the actior under the Statute is malafide and not in accordance with the provisions ot" the Statute. The case was under East Pakistan Wakt" Ordinance (1 of 1962), in which the order of renewal of Mutawalli was passed without notice to him and the order was found to be against the express provisions of section 32(1) of East Pakistan Wakf Ordinance (1 of 1962). In the instant case, the plea of malafide has not been taken. The plaintiffs/petitioners claim the suit land as having been purchased by them on the basis of consent decree and if the land was resumed, they could approach the Land Commission tor the redress of their grievances. In the case of Zafrul-Haxsan (PLD 1960 S.C. (Pak.) 113), conditions to be satisfied for ouster of jurisdiction to operate are laid down as under: - "If a Statute provides that an order made by an authority acting under it shall not be called in question in any court, all that is necessary to , oust the jurisdiction of the court is that the authority should have been constituted as required by the Statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the Statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute, the omission or irregularity alleged will be a matter for that authority, and not for a court of law".In the instant case, the authority, i.e. the Land Commission, could pass the order under the Statute. Learned counsel for the plaintiffs/petitioners has not been able to point out any provision in the Regulation requiring issuance of notice to the petitioners so as to say that order could not be passed without notice. 11. The matter in issue in the present case whether the transfer in favour of the plaintiffs/petitioners was valid may be decided by the Land Commission. The question whether a particular transaction is hit by the provision of Para.25 of M.L.R. No. 64 is the exclusive function ot the Commission. It has been held in the case of Mst.Ayesha Vs. Chief Land Commissioner (PLD 1966 S.C.84) that the Commission is not bound to act in accordance with the Civil Court decree, although the Commission had itself permitted the females to have their rights declared by the Civil Court. The Land Commission may get assistance of civil court in the resolution of dispute, but the power of final decision in respect of every disputed matter is vested in the Commission. The case reported as Mst.Hajiani. Mst. Jannat and Mst. Mirziuli, appellants Vs.Wext Pakistan Land Commission Lahore etc. (PLD 1966 SC 114) is referred. In the case of aid All. Vs. Taj Din (PLJ 1992 Lahore 278), the dictum of the Supreme Court in Nisar Ahmad Khan's case reported in 1967 S.C.M.R. 667 was referred which reads as under: - "Paragraph 27 bars tke 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 any 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 function of the Commission or of the Chief Land Commissioner who are charged with the duty of implementing the provisions of the Regulation". 12. From what has been stated above, it is clear that the impugned orders of the ower Courts do not suffer from any illegality or material irregularity calling for interference by this Court in revision u/s 115 CPC. 13. For the foregoing reasons, these two C.R.No.75 and 76 of 1990 are dismissed with no orders as to costs. (MBC) (Approved for reporting) Petitions dismissed.

PLJ 1993 Peshawar 46 PLJ 1993 Peshawar 46 [D.I.Khan Bench] Present: MUHAMAD KHIYAR, J. ABDULLAH KHAN and 2 others - Petitioners versus Sh. MEHBOOB SABIR and 5 others - Respondents Civil Revision No.55 of 1989, accepted on 14.9.1992 (approved for reporting on 3.11.1992). Civil Procedure Code, 1908 (V of 1908) O.VII R.ll - Plaint -- Rejection of - Challenge to -- Illegality committed by tr#l court is that while passing order of rejection of plaint, it considered previous order dated 17.12.1984 which could not be done because suit wherein said order was passed, was withdrawn and fresh suit was filed — Held: In facts and circumstances of case, plaint could not be rejected under order VII Rule 11 CPC on ground that suit was not competent — Petition accepted and case remanded for further proceedings. [Pp.49,50, & 51]A,B,C&D 1990 SCMR 1630, PLJ 1988 Karachi 200, 1991 CLC 149, 1988 CLC 1207, 1988 CLC 473, 1988 CLC 308, 1987 CLC 2461, PLD 1981 Karachi 604, PLJ 1992 SC 204, 1981 CLC 654, PLD 1967 Dacca 190, and 1988 SCMR 824 ref. S.Zafar Abbas Zaidl, Advocate for Petitioners. Mr.Abdul Samad Khan, Advocate for Respondent No. 1. Mr. H.Saadullah Khan, Advocate for Respondent No.4. Date of hearing: 14.9.1992. JUDGMENT This civil revision is directed against the order dated 18/7/1988 of the learned Senior Civil Judge Bannu vide which the plaint in suit No.362/1 was rejected under Order 7 Rule 11 CPC and the order was maintained by the learned District udge Bannu on 16/2/1989. 2. The facts giving rise to this civil revision may briefly be narrated as follows: 3. Abdullah Khan and two others, plaintiffs/petitioners herein, instituted suit No.613/1 on 2/9/1982 against Sheikh Mehboob Sabir and others, defendants/respondents herein, for declaration to the effect.that being the old tenants they were entitled to purchase the land and that decree in suit No.286/1 dated 28/3/1966 obtained by defendants/respondents from the Court of Senior Civil Judge Bannu was collusive, fraudulent, void and ineffective on their rights on the basis of which mutation No.3179 could riot be attested on 23/8/1981. They also prayed for permanent injunction restraining defendant/respondent No.l from interfering in their possession of the land. 4. The suit was resisted and from pleadings of the parties issues were framed. However on 13/10/1984 on the application of defendant/respondent No.l that the suit was not maintainable, the learned Senior Civil Ju ge Bannu obtained reply to the application and heard the arguments. On examination of thejamabandi for the year 1979-80, the learned Senior Civil Judge held the view that the land was owned by the Central Government, a portion of which was in possession of defendant No.l as a tenant while some of the land was in possession of the plaintiffs as tenants. The plaintiff/petitioner could not be unaware of the decree in the year 1966 and as such his suit was time barred. The plaintiffs/petitioners could not prove that they being the sitting tenants had the rights to purchase the land from the Central Government, whereas defendant-respondent No.2 purchased the suit land through RL-II. The learned trial Judge was of the view that the suit as filed was not competent and getting support from the case of Muhammad Yaqoob Vs. Ghulam Muhammad (CLC 1981 654), rejected the plaint under Order 7 Rule 11 CPC on 17/12/1984, 5. The aforesaid order of rejection of plaint was challenged in appeal where in the appellate Court the plaintiffs/petitioners withdrew from the suit in order to bring fresh suit. The appellate court vide order dated 2/8/1986 permitted them U withdraw the suit with permission to bring another. 6. The fresh suit No.362/1 was instituted on 20/11/1986. The defendants/respondents again moved an application to the Court for rejection of the plaint. The Court vide impugned order dated 18/7/1988 accepted the petition and again rejected the plaint under Order 7 Rule 11 CPC on the view that plaint was the verbatim copy of the previous plaint, the suit was time-barred and the plaintiffs had no cause of action. This order was challenged in appeal before the learned Additional District Judge Bannu who vide order dated 16/2/1989 placing reliance on CLC 1981 Lahore 654 upheld the order and dismissed the appeal. 7. The aforesaid two orders dated 18/7/1988 and 16/2/1989 are impugned in this revision petition. S.Zafar Abbas Zaidi Advocate for the plaintiffs/petitioners vehemently contested the impugned orders of the Courts below and argued that the procedure adopted by the Courts in rejection of the plaint under Order 7 Rule 11 CPC is not warranted by law. He was of the view that the trial Court could not see the jamabandi to arrive at the conclusion whether the suit was competent or not, the plaintiffs/petitioners had challenged the mutation attested on the basis of decree of the Court on the ground of fraud and as such the assertions in the plaint were required to be seen and not as to whether the assertions could be proved or not. In his view the case reported in 1981 CLC 654 Lahore and relied upon by the Courts below was not applicable. In support of his contentions, reliance was placed on the following authorities: - 1. GhulamAli. Vs. Asmatullah; (1990 SC.M.R. 1630). 2. S.Naseeruddin Advocate Vs. Karachi Bar Association (PLJ 1988 Karachi 200) 3. Hyderabad Municipal Corporation Vs. Fat eh Jang Limited (1991 MLD Karachi 284). 4. M/s. Havdari Construction Co Ltd. vs. Bank of Credit and Commerce International Overseas Ltd. (1991 CLC 149 Karachi). 5. Mst. Fatima Moeen Vs. Addl. Distt. Judge Sheikhupura (PU 1992 SC 204). 8. Mr.Abdul Samad Khan Advocate for the defendants/respondents supported the impugned orders as being proper and legal. His arguments were that since the plaintiffs/petitioner's suit was not competent, therefore, the Court rightly rejected the plaint under Order 7 Rule 11 CPC. Learned counsel for the defendants/ respondents was of the view that the plaintiffs/petitioners had no vested rights in the suit land as the land was owned by the Provincial Government and the declaration asked for could not be granted to them under the law. Reliance was placed on the case reported as Burma-Eastern Limited. Vs. Burma Eastern Employees 'Union «tc.( PLD 1967 Dacca 190). In reply to the arguments of the learned counsel for the plaintiffs/petitioners that for rejection of plaint under Order 7 Rule 11 CPC only the assertions made in the plaint are to be seen, learned counsel for the defendants/respondents argued that not only the contents of the plaint but other materials can also be looked into. Reliance was placed on Ghulam Sarwar vs. Sultan Bibi (1989 MLD 4873 Peshawar). 9. The orders impugned in this revision are those passed under Order 7 Rule 11 CPC. The order dated 18/7/1988 rejecting the plaint under Crder 7 Rule 11 CPC is based on the previous order dated 17/12/1984. The illegality committed by the Court is that while passing the order dated 18/7/1988, the order dated 17/12/1984 could not be considered because the suit in which the order dated 17/12/1984 was passed was withdrawn and fresh suit was filed. Since the court considered the order dated 17/12/1984 while rejecting the plaint under Order 7 Rule 11 CPC on 18/7/1988, therefore, learned counsel for the parties also addressed arguments keeping in view the order dated 17/12/1984. I have applied my mind to the respective contentions of the learned counsel for the parties. I am of the view that in the facts and circumstances of the case, the plaint could not be rejected under Order 7 Rule 11 CPC on the ground that the suit was not competent. The case law cited by the learned counsel for the parties may, therefore, be seen. In Ghulam AH vs. Asmatullah (1990 S.C.M.R. 1630), the plaint was rejected under Order 7 Rule 11 CPC on the ground that it did not disclose any cause of action. Appeal against the order was allowed and the case was remanded to the trial court for further proceedings. The order of remand was challenged through an appeal before the High Court which was allowed, the order of remand was set aside and that of rejection of plaint was restored. Leave to appeal was granted to examine the question "Whether the appellant's plaint could be rejected under Order 7 Rule 11 CPC for non-disclosure of cause of action. On acceptance of appeal, the august Supreme Court observed as under:- "After hearing the learned counsel for both the sides we have not been able to agree with the reasoning of the High Court. Whether or not oral evidence could be led to support the assertion made in the aforereproduced part of the plaint, it is an admitted position that the assertions made in the plaint, as they were, had to be seen for purpose of determining whether the plaint disclosed any cause of action. It is not denied that if the said reproduced averments are kept, in mind regardless of the fact, whether the respondent/plaintiffs would be able to prove them or not, they do disclose sufficient cause of action to proceed further with the suit. It is also not denied from the respondent's side that lack of proof or weakness of proof in the circumstances of this case does not furnish any justification for coming to the conclusion that there was no cause of action shown in the plaint. That being so, there is no alternative but to accept this appeal, set aside the impugned judgment and restore the order of remand passed by the learned District Judge".It will, therefore, be seen that lack of proof or weakness of proof cannot be a ground for rejection of plaint. 10. In the case of S. Naseeruddin Supra (1988 CLC 1724) after having referred to the old case law, it has been held that while considering the question for cause of action for rejection of plaint under Order 7 Rule 11 CPC, the Court has to apply its mind to the facts given in the plaint and not other matters and it is to be presumed that any allegations made in the plaint were true. In re: Hyderabad Municipal Corporation (1991 MLD Karachi 284), the observations made are that all averments made in the plaint would be presumed to be correct hi manner and in form for considering whether the plaint could be rejected under Order 7 Rule 11 CCPC. Similarly hi the case of M/s Haydari Corporation (1991 CLC 149 Karachi), it has been held that for purposes of application of Order 7 Rule 11 CPC, only the averments made in the plaint will be looked into and nothing else. In this reported case reference is made to the cases reported hi 1988 CLC 1207, 1988 CLC 473, 1988 CLC 308, 1987 CLC 2461 and PLD 1991 Karachi 604. In recently reported case of Fatima Moeen vs. Additional Distt. Judge Sheikhupura (1992 S.C.M.R.1199) the order of trial Court declining to reject plaint under Order 7 Rule 11 CPC summarily was upheld. The authorities referred to above, do not support the order of rejection of plaint under Order 7 Rule 11 CPC without application of mind and the order of rejection based on other materials has been held to be not proper. The reliance by the Courts below on the case of Muhammad Yaqoob vs. Ghulam Muhammad (1981 CLC 654) was mis-placed. In that case the facts were that the shop belonging to the Provincial Government was being claimed by the petitioner in a declaratory suit who was the tenant and against whom the order of ejectment had already been passed. In view of those facts, it was held that on the basis of possessory right, suit for declaration could not be decreed and the plaint did not disclose any cause of action. In the instant case, the position is different. The laintiffs/petitioners have not only claimed the land as tenants, but they have also challenge the decree of the civil court obtained in the year 1966 being executed in the year 1981. The averments made hi the plaint ould show that plaintiffs have challenged the decree in suit No.284/1 as ineffective on their rights, void and not binding on them. The muta ion No.3179 attested on 23/8/1981 on the basis of that decree has also been challenged. It is, therefore, not correct to say that the plaintiffs/petitioners were pleading title of the Provincial Government. 11. The case law referred to by the learned counsel for the defendants/respondents does not support the impugned orders. In the case reported in PLD 1967 Dacca 190, the plaint was rejected under Order 7 Rule 11 CPC as the s"uit was found incompetent under Section 42 of the Specific Relief Act. This was a suit for declaration by the Burma Eastern Employees Union that terms and conditioins imposed upon the services of the members of the plaintiffs/petitioners were illegal, ineffective, ultra-vires, void, ab-initio. His lordship considered the case qua the terms "legal character" used n Section 42 of the Specific Relief Act and held the suit imcompetent by law. The case in hand is not of that type. In the case reported as 1989 MLD 4873 Peshawar, the view that to invoke the provisions of Order 7 Rule 11 CPC not only the contents of the plaint but material produced in defence may be kept in mind was based on the case of Nazir Ahmad vs. Ghulam Mehdi etc. (1988 S.C.M.R. 824), wherein the jurisdiction of the Civil Courts was found barred under Evacuee Trust Property Act 1957 and in that eventuality it was held that upsetting of orders of Courts regarding rejection of plaint merely for reasons that courts were not competent to look outside the averments made in the plaint would amount to a mere technicality. In Ghulam Sarwar's case (M.L.D.1989 Peshawar 4873), the plaint was rejected because of the embargo placed on the civil courts by Section 172(2) (xviii) of the West Pakistan Land Reforms Act 1967.1 am, therefore, of the view that the case of Ghulam Sarwar supra does not support the case of the respondents, as in that case as well as in the case of Nazir Ahmad supra, the plaint was rejected under Order 7 Rule 11 CPC, not merely on the ground that materials outside the plaint were considered, but on the ground that the law barred the jurisdiction of the civil courts to entertain and adjudicate upon the suit. 12. For the foregoing reasons, this civil revision is accepted, the impugned; orders dated 18/7/1988 and 16/2/1989 of the lower courts are set aside and the case is sent back to the learned Senior Civil Judge Bannu for further proceedings 1 in accordance with law. Parties to bear their own costs (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Peshawar 54 PLJ 1993 Peshawar 54 Present: MUHAMMAD BASHIR JEHANGIRI, J MIR ALAM-Petitioner versus SHAH ZAMAN and 4 others-Respondents Civil Revision No.166 of 1992, dismissed on 6.3.1993, (i) Concurrent Findings- —-Suit for possession-Dismissal of--Challenge to~Two courts below have properly read evidence and have applied their mind consciously to legal and factual aspects of case--They have given sound reasons in support of conclusions arrived at and as such, exercised jurisdiction quite legally-Held: No illegality, material irregularity, misreading or non-reading of evidence by two courts below in arriving at concurrent findings, has been pointed out. [Pp.56&57JA (ii) Judgment-- —-Suit for possession-Dismissal of~Challenge to-Whether District Judge having failed to give findings issue-wise, has recorded judgment in violation of Order XLI Rule 31 CPC-Question of—District Judge has ecided points for determination and has also furnished reasons therefor—Appellate Court is not required to give its findings on <jach and every issue or record a judgment issue-wise as is case of judgment of trial ourteld: There is no fault hi impugned appellate judgment nor any such defect was pointed out so as to render judgment unlawful-Petition dismissed. [Pp.57&58]B&C Syed Shabbir Hussain Shah, Advocate for Petitioner. Date of hearing: 6.3.1993. judgment . This Civil Revision calls in question the judgment and the decree dated 28.5.1992 passed by the learned District Judge, Abbottabad affirming the judgment and the decree passed on 9.12.1986 by a learned Civil Judge First Class, Abbottabad, whereby the suit for possession of land measuring 17 marlas bearing khasra No.460 and situate in village Pawa had been decreed in favour of the plaintiff-respondent. 2. Brief facts forming the background of the dispute are that plaintiffrespondent filed a suit against defendant-petitioner for possession of land in dispute on the allegation that it belonged to him and proforma-defendant No.2 which the defendant-respondent No.l about a year prior to the institution of the suit had not only illegally occupied but also got the entries of "Bila-Lagan- Batassawar-e-Milkiat" recorded in the Register of Crop Inspection. 3. Mst. Janat Noor, proforma-defendant No.2 confessed judgment Mir lam defendant No.l contested the suit, wherein he, inter-alia, repudiated the claim of plaintiffs title to the disputed land. 4. The learned Civil Judge, after appraising evidence of the parties, decreed the suit of the plaintiff mainly on his findings on issue No. 10 which is to the following effect: - "Whether the plaintiff is entitled to the decree prayed for? 5. The answering defendant, as stated earlier, filed appeal to the learned District Judge. After perusal of the entire revenue record placed on the file, he upheld the findings of the learned trial Court and observed that "in the written statement the defenant-petitioner had laid claim to Khasra No.460/1 measuring 1 kanal and 13 marlas whereas the subject matter in dispute is distinctly Khasra No.460, which, according to the unobjected report of the local commissioner bears Khatooni No.92 as compared to Khasra No.460/1 Khatooni whereof is 179 and that the alleged vendor of the defendant-petitioner had never remained either owner or in possession of Khasra No.460. The appellate Court has, therefore, come to the conclusion that defendant-petitioner was taking advantage of similarity of not only the Khasra No.460 but also from his name Mir Alam, which was similar to another Mir Alam son of Akhtar Ali, although even the latter had also never remained owner-in-possession of Khasra No.460 which in fact belonged to Juma son of Muzaffar Khan. Similarly the plea of adverse possession raised by the defendant-petitioner which was not accepted by the trial Court also did not find favour with the learned District Judge. As a result of these findings the appeal of the plaintiff was also dismissed. 6. Feeling still dis-satisfied, the plaintiff-petitioner has come up in revision. 7. Mr. Shabbir Hussain Shah, learned counsel for the petitioner, in support of this petition, raised the following contentions:-- (/) That the two Courts have mis-read the entries of revenue record, in that, the land which originally belonged to Mir Alam son of Akbar Ali had been purchased about 50 years back by the petitioner and he has been in its possession since then. (w) That in the instant case, the-settled principle of law that demarcation proceedings are to be conducted by a person who is well-versed in revenue law but EAC-II appointed in this case as a Local Commissioner to demarcate the land was deficient in this regard and that is why he did not commence measurements from three different permanent points and thus the findings based on the report of demarcation aforesaid were not sustainable in law. (Hi) That the learned District Judge, having failed to give findings issue-wise, has recorded the judgment in violation of the provision of Order 41 Rule 31C.P.C. 8. I have considered the arguments advanced by the learned counsel for the petitioner and have gone through the record. The learned counsel for the petitioner is not correct to urge that the two Courts below have been the victim of mis-reading or mis-construing the volumnous revenue record placed on the record. The learned trial Judge had not only taken notice of all the entires relevant to the settlement of real controversy but had also appreciated them in their true perspective. In so far as the learned District Judge is concerned, he has pin-pointed the whole dispute in para 4 of his judgment and ad rightly maintained hat the petitioner has attempted to take undue advantage of not only the numerators by in-advertance of the Settlement Authorities in describing Khasra No.460/1 and 460/1 in stead of Khasra No.460 and 460/1, but also the similarity of his name as Mir Alam "who is but son of Akbar AH". Nonetheless even the said Mir Alam is not proved to have been an owner-in-possession of KJiasra No.460 "which in turn is shown to be the property of Jumma son of Muzaffar Khan". In view of the above discussion I am of the opinion that the first contention having no substance must collapse. Even otherwise the two Courts below have properly read the evidence and have applied their mind consciously to the legal and factual aspects of the case and have given sound reasons-in support of the conclusions arrived at and as such exercised jurisdiction quite legally. The learned counel has failed to show that the concurrent findings of fact recorded by the two Courts below, in any manner, suffered from illegality or material irregularity. No mis-reading or non-reading has been pointed out either.The criticism of the learned counsel on unobjected report of demarcation Ex.C.W.1/1 is misplaced, in that, it was not a demarcation proceedings slricto senso. It was directed to be carried out with a view to clarify as to how Khasra No.460/1 has been described twice in the settlement record and for that matter the learned EAC-II had submitted his report which does not suffer from any impropriety or illegality. The second contention of the learned counsel has thus no substance and stands repelled. 9. The contents of the appellate judgment are regulated by Order XLI Rule 31 C.P.C. The appellate Court is not required to give the findings on each and every issue. Nonetheless, where the original judgment under Order XX Rule 4 C.P.C. should contain:- (1) A concise statement of the case. (2) The points for determination i.e. the issues. (3) The decision of the Court with regard to each issue, and reasons for the decision. As against this an appellate judgment should state the points arising for determination, its decision thereon and the reasons for its decision. The term "points for determination" refers to all the important questions involved in the case, such a judgment need not include points which have been either abandoned or which are not necessary for the disposal of the case. The learned appellate Court had decided the points for determination and has also furnished reasons therefor. I, therefore, find no fault with the impugned appellate judgment nor any such defect was pointed out as to render the judgment unlawful. The appellate Court is also not required to give its findings on each and every issue or record a judgment issuewise as is the case with the judgment of the trial Court. Nevertheless, the mere fact that the judgment does not deal with all the i" Jcncc, or all the circumstances or that the description of evidence is unsatisfactory or that the judgment is short, is not by itself a ground for interference in the civil revision. If the requirements of Rule 31 ibid have been substantially complied with and it is evident from the judgment that the Judge was conscious of the matters involved and the decision has been pronouneed on the basis of the record then it would be taken as a substantial compliance therewith. The last argument of the learned counsel is thus not tenable. 11. As a sequal to what has been observed above there is no substance in this civil revision which is dismissed in limine. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Peshawar 58 PLJ 1993 Peshawar 58 Present: MUHAMMAD BASHIR JEHANGIRI, J ABDUL KARIM-Petitioner versus ALI ZAMAN and another-Respor.dents Civil Revision No.172 of 1992, dismissed on 3.2.1993. Easement— —Passage to courtyard of dcfendants-Easement-Right of--Whethcr right of easement is proved-Question of--Presumption is that enjoyment of passage through courtyard was not as of right but was clearly attributable o tacit permission—Trial Judge was required to have looked to nature and character of subservient tenement, i.e. courtyard in front of Kollias of defendant, in which, if a Charpai is placed, space left was not enough or user of his pathway-Similarly, trial Judge has overlooked relations between parties and manner in which user has been taking place, namely, permissive nature of user-Held: Petitioner (plaintiff) has not been able to rove that passing over courtyard of defendant, was hostile and adverse to his right-Held further Petitioner has miserably failed to establish right of easement of necessity as well-Petition dismissed. [Pp.63&64]A,B,C,D&E PLJ 1991 SC 485, PLD 1980 SC 193, AIR 1929 Allahabad 676, PLJ 1981 SC (AJK) 32,1988 CLC 1301,1991 MLD 1112, PLD 1975 Pesh. 82,1955 (7 DLR) 577 and 1983 CLC 272 discussed. Mr. Sajjad Ahmad, Advocate for Petitioner. Mr. Muhammad Yoimus Tanoli, Advocate for Respondents. Date of hearing: 3.2.1993. judgment This revision petition arises out of a suit for establishment of a right of intervening the Kothas to the plaintiff-petitioner on three-fold grounds: firstly, as co-owner of the courtyard; secondly, by way of prescription and; thirdly, as of casement of necessity. The learned appellate Court came to the conclusion that "the courtyard was being used by the parties as a path till partition. However, after the partition there has been dispute over the use of the courtyard as a path between the parties to this suit and one Muhammad Yaqub D.W.2 who sold his house to the plaintiff for want of path. Admittedly the plaintiff is residing in Karachi and there is an alternate path. The plaintiff has also constructed another Kotlia which is linked up with the alternate path. The alternate path is also linked up with the house for which the disputed path is claimed". The claim qua the easement of necessity was also disallowed by the learned appellate Judge because element of convenience was not sufficient to grant right of easement of necessity. He had thus held the plaintiff-petitioner to have no right of way through the courtyard intervening the two residential Kothas of (he defendant-respondent and while setting aside the judgment he non-suited the plaintiff-petitioner. 4. Paras 3 and 4 of the plaint read as under:— 5. The learned counsel for the petitioner, therefore, did not press into service the assertion that he being co-owner in the courtyard, the petitioner was also entitled to use it "rightfully". Conversely he raised the following two contentions:— (/) That the plaintiff has proved to have been exercising right of access to his house thrqugh the courtyard intervening the two Kothas having fallen to the defendant's share, peaceably without interruption, and for over 20 years. (fl) That the plaintiff in any case, was entitled to easement of necessity within the contemplation of Section 13 of the Easements Act (V of 1882). 6. In support of these two contentions the learned counsel for the petitioner invited my attention to the statement of Faqir Muhammad (P.W.3), father-in-law and attorney of the plaintiff; the evidence of Muhammad Din (P.W.4) and the report of the Local Commissioner which has not been objected to by either of the parties. Faqir Muhammad (P.W.3) had deposed that the disputed path leading to the house of the plaintiff had been continuously used "since their forefathers". then no path remains available. According to him there was an alternate pathway for the plaintiff which would enhance the distance of only 50/55 feet. 10. The learned counsel for the petitioner in support of his contentions also referred to case law. In "Abdul Hamid Shah and another v. Muhammad Yar and 13 others" (P.L.J. 1991 S.C. 485), the Supreme Court of Pakistan held that for sustenance of claim of right of easement of necessity it must be shown that without enjoyment of such right the property for the beneficial user whereof the right exists, cannot be used; it is not enough to show that it is merely necessary for use of property or without it the enjoyment of the said property would be rendered inconvenient. It was held in "Fazal-e-Raziq v. Syed Zaman Shah and others" (P.L.D. 1980 S.C. 193) while referring to "Bagwan Dass and others v. Zamurd Hussain and another" (A.I.R. 1929 Allahabad 676) a doubt was expressed as to whether the decision in "Gokal Parshad's" case (1921 Calcutta L.J. 319) had a binding effect after the lapse of half a century when it was manifest that the force of the custom of 'Pardah' must have largely varied in the course of such a long period. It was observed on the custom of 'pardah' that before such custom can be recognized it will be necessary to investigate whether it has essential attributes of a custom, it must be immemorial, it must be reasonable, it must have continued without interruption since its immemorial origin and it must be certain of its nature generally as well in respect of the locality where it is alleged to obtain and the person whom it is alleged to affect and that it is then that custom acquires the force of law and judicial notice can be taken of it under Section 57 of the Act. In "My/. Noor Nishan and 4 others v. Said Muhammad and 17 others" (PLJ 1981 S.C. (A.IK) 32) it was reiterated that in order to establish a right of easement under Section 26 of the Limitation Act, 1908 it is enough for a plaintiff to prove that he has been exercising the right without interruption with express or implied permission of the owner of the survient tenement <and without secrecy or stealth an open user continues without interruption tor a long time and not shown to be attributable to permission or sufferance on owner's part is prima facie evidence of enjoyment as of right; the presumption is that the party enjoying an casement acted under a claim of right until the contrary is shown. It was emphasized in this precedence that the question whether the enjoyment for the necessary period has been "as of right" must depend not only on the circumstances of each particular case but on the habits of people. It as indubitably found that the burden of proof of the right of easement lies on a party who claims enjoyment of such right. In "Abdullah and others v. Ahmad K)wn and 10 others" (1988 C.L.C 1301) after reviewing the case law on the subject it was thought that the Courts in the Sub- Continent consistently held that a person in the immediate neighbourhood entitled to use a local public thoroughfare has a special cause of action irrespective of the fact that he has proved special damage or not. In the last authority of "A. Razak Adamjee and another v. Messrs Dalari Construction Company (Pvt.) Lid." (1991 M.L.D.1112) the law laid down by the High Court at page 1124 was that where from the evidence in case of violation of privacy ofplaintiff or any other person has been established then there is no question of right of privacy. The perusal of these authorities would reveal that the first case of "Abdul Hamid Shah" supports the case of defendant-respondent rather than that of the plaintiff-petitioner and the claim set up by the plaintiff in the plaint and tried to be substantiated by evidence does not come up to the test laid down therein. The second authority of "Fazal-e-Raziq v. Syed Zaman Shah and others" (1980 S.C. 193) relied upon by the learned counsel for the petitioner also has different facts in the background and is not of help to the plaintiff-petitioner. Similarly, the authority of "Mst. Noor Nishan" from the jurisdiction of AJ&K does not lend support to the claim of plaintiff but it substantiates the defence raised by the owner of the servient tenement. In this context I can do no better than refer to the precedent case of "Qazi Muhammad Ishaq v. Abdul Waheed" (P.L.D. 1975 Peshawar 82) on which the learned counsel for the defendant-respondent had placed implicit reliance. The law laid down in "Abdul Hafiz and others v. Mahfizud Din and others" (1955 (7 DLR) 577) was approved in the case of "Muhammad Ishaq" referred to above that a prescriptive right of way cannot be acquired by mere enjoyment for the statutory period. Enjoyment must be as of right, i.e., not attributable to permission implied or express. The mere fact that one person walks over the land of another, does not raise any presumption hat he has a right to do so. It was very aptly remarked that numerous people pass over the lands of their neighbours, friends and relations with their tacit permission and that such user, though continuous, and long, is seldom understood being in assertion of any right. It was rightly emphasised that in a suit for prescriptive right of way the plaintiff must show that his user was such as was sufficient to put the survient owners on notice that the enjoyment was not attributable to his tacit permission or favour. In the instant case it cannot possibly be visualized nor it is proved on the record that in a private partition that took place between the parties to the controversy the plaintiff-petitioner could possibly be allowed to use the courtyard of the house of the defendant-respondent as a passage. The presumption is that the enjoyment was not as of right but was clearly attributable to tacit permission as along as there was no infringement of the right of privacy of the owner of servient tenement; It Was highlighted in the case of "Muhammad Ishaq" cited above that one cannot overlook that in a Muslim Society where the neighbours are to be accommodated to the greatest possible extent a casual passage on this or that occasion through one's courtyard or verandah will be referable a licence and not as of right as is known in the law of easement. Again in the case of "Fazal Karim and another v. Muhammad Ashiq and 2 others" (1983 C.L.C. 272) the plaintiff was required to prove in the case of acquisition of the right of casement by prescription the following ingredients:-- (a) The plaintiffs passed over a subservient tenement for more than 20-years; (b} the passing over was hostile and adverse to the right of the owners of the subservient tenement (c) the act of passing over was done consciously; (d) the Court must also look to the nature and character of the subservient land, relations between the parties and the manner in which the user took place. 11. It was held in the said case of 'Fazal Karim' that admittedly, the disputed path and other properties therein were situate in a village; that normally the land owners permit others to use their land for purpose of passage but it is generall permissive act and the users also do not treat it as a hostile act to the other tenement. The appellants therein, therefore, were required to have produced , some evidence as to 'd' ante so as to succeed. In the instant case also the learned trial Judge was required to have looked to the nature and character of the subservient tenement, namely, the courtyard in front of the Kothas of the defendant-respondent in which if a charpai is placed, the space left was not " enough for user for his pathway. Similarly, the learned trial Judge has overlooked "the relations between the parties and the manner in which theuser has been taking place in the instant case, namely, the permissive nature of the user. 12. From what has been observed above, the plaintiff-petitioner has not been able to prove that the passing over the courtyard of the defendant respondent wa hostile and adverse to the right of the defendant-respondent and that the act of passing over has been done consciously. The first contention of the learned counsel for the plaintiff-petitioner has no substance and it must fail .13. Apart from the defendant's ocular evidence, I find, in the report of the Local Commissioner also, that there is an alternate path available to the plaintiffpetitioner but it would not only consume more time but would be also to some extent inconvenient. The law is settled by now as held in "Abdul Humid Shah's" case relied upon by the plaintiff-petitioner's counsel that for the sustenance of claim of right of easement ofnecessity it must be shown that without enjoyment of such right, the property for the beneficial user whereof the right exists cannot at all be used and that mere necessity for use of the property and inconvenience are not enough to grant such a right. The plaintiff-petitioner has thus miserably failed to establish his right of casement of necessity as well. 12. In view of the above, there is no merit in this revision which is dismised. As the point involved was quite technical the parties shall bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Peshawar 64 PLJ 1993 Peshawar 64 Present: muhammad khiyar, J SHAHBAZ KHAN-Petitioner versus Haji FAZAL SHAH--Respondent Civil Revision No. 101 of 1986, accepted on 15.5.1993 Pre-emption— —-Pre-emption-Suit for--Suit decreed but decree set aside in appeal-­ Challenge to-Whether Khasra No. 1149 is Waqf property-Question of~At time of institution of suit, khasra No. 1149 was not shown as graveyard in revenue papers—Appellate court is wrong in holding view that major portion of this khasra number is shown as graveyard in revenue papers-This view may be correct with respect to past position of land but not at time of institution of suit-Held: Appellate Court's finding is result of misreading of evidence and is not sustainable in law-Petition accepted and judgment and decree of trial court restored. [P.67]A&B Mr. Abdus Samad Khan, Advocate for Petitioner. Mr. Munir Klian, Advocate for Respondent. Date of hearing: 14.4.1993. judgment This revision is directed against the judgment and decree dated 30.11.1985 of the learned District Judge, Peshawar Camp at Charsadda, whereby appeal against the judgment and decree dated 7.12.1983 of the learned Civil Judge 1st Class, Charsadda, was accepted and preemption suit filed by Haji Saadullah Khan was dismissed. 2. The facts in brief are that. Nawab Khalid Khan, defendant-respondent No. 4 herein sold the suit land fully described in the heading of the plaint situated in village Tarnab to Haji Fazal Shah and two others defendant-respondents 1 to 3 herein for Rs. 43,000/- vide registered deed dated 8.2.1975. Haji Saadullah Khan, predecessor-in-interest of the petitioners herein preempted the sale by instituting the suit in Civil Court at Charsaada on the ground of being contiguous owner with the suit land and participator in the amenities and appendages. The price mentioned in the registered deed was also challenged as fictitious and prayer for the decree on payment of Rs. 18,000/- was made. The suit was contested by the defendant-vendees by filing written statement. The trial Court framed necessary issues from the pleadings of the parties and recorded the evidence of the parties on the issues framed. On the basis of the evidence and in view of the arguments addressed the learned Civil Judge vide judgment and decree dated 7.12.1983 decreed the plaintiffs suit to the extent of khasra No. 1151 to 1154 measuring 15 kanals 4 marlas against the defendant-respondents on payment of Rs. 25481/48 while his suit with respect to khasra No. 1168 was dismissed. The learned Civil Judge held that plaintiff was owner in possession to the extent of 7 kanals in khasra No. 1149 which was found to be shamilat-i-deh contiguous to khasra No. 1151 which was contiguous to other khasra number forming one compact block while the defendant had no contiguity. Khasra No. 1168 was found not contiguous to the plaintiffs land. The judgment and decree was assailed in appeal before the learned District Judge, Peshawar Camp at Charsadda who took a different view that khasra No. 1149 was shown as "Chair Mumkin Qabristan" in possession of "Ahl-i-Islam" in the jamabandies upto 1940-41 and that even if in the jamabandi for the year 1946-47 and thereafter some abadi, is shown in the khasra number or some portion is recorded as 'barani', it would not change the nature of khasra No. 1149 which is a graveyard and the person claiming to be co-sharer in such type of land could not claim superior right of preemption on the basis of contiguity. Reliance was placed on the case reported as Muhammad Jan v. Suleman and others (PLD 1968 Peshawar 181). The learned District Judge therefore accepted the appeal, set aside the judgment and decree dated 7.12.1983 of the learned Civil Judge and dismissed the suit. 3. The petitioners have now challenged the judgment and decree dated 30.11.1985 of the learned District Judge, Peshawar in this revision. 4. Mr. Abdus Samad Khan, Advocate, for the petitioner contended that the appellate Court erred in holding the view that khasra No. 1149 was a waqf property as for a waqf dedication under the law is essential. The learned counsel argued that the case of Muhammad Jan, supra, is distinguishable as in that case the entire khasra was used as graveyard since long and there was no evidence that any portion of the khasra was used for any other prupose except for the graves and because existence of graveyard was established on the land, its dedication as waqf was to be presumed in view of the long use of the 'graveyard. The learned counsel referred to the case of Rahmanullah vs. Abdul Nazir etc (NLR 1986 Civi 166) wherein it is held that the claim of vendee that the land was purchased for the purpose of graveyard and as such it would be exempt from claim, is not sustainable in a case where doctrine of musha is attracted. 5. Mr. Munir Khan Advocate, for the defendant-respondent contended that the findings of the learned appellate Court are based on the entries of the jamabandies for the year 1928-29 to 1942-44 and that the subsequent change in the nature of the property would make no difference particularly when there was no denial from the plaintiffs side or any evidence to show that khasra No. 1149 was not used as a graveyard. 6. The question to be determined in this case is whether the learned District Judge has rightly held khasra No. 1149 as waqf property and correctly understood the case reported in PLD 1968 Peshawar 181. I have gone through the Division Bench judgment of this Court and have found that it does not support the arguments of the learned counsel for the respondent. The learned Judges after making reference to the case law n the point, the provisions of Muhammadan Law and of Hcdaya, observed as under:- "The facts of the case taken into consideration with the authorities cited above, would clearly show'that there is a graveyard in khasra No. 127 since a very long time, and there is no evidence that any portion of this khasra number is not occupied by graves. Since the existence of a graveyard has been established on the land, its dedication as a waqf is to be presumed in view of the long user as a graveyard in the light of the authorities cited above. After the dedication, the rights of the private owners are extinguished and the property vests in Almighty." 7. With the guidance provided, it is now to be seen whether khasra No. 1149 is waqf property used as graveyard. In jamabandi for the year 1940-41 and even before that khasra No. 1149 measuring 21 kanals 1 marla is shown as shamilat of the village in possession of Ahl-i-Islam as 'Ghair Mumkin Qabrislan'. In the jamabandi for the year 1946-47 an area of 21 kanals 1 marla is shown in • possession of Ahl-i-Islam and Saadullah Khan in possession of 5 kanals as tenant at will' 'ftfj/tftit, ' '. One Sherin Khan Hissadar is also shown in possession of 5 kanals. Thus out of 21 kanals 1 marla, an area of 10 kanals is in possession of two persons and kind of land is shown as Barani and the remaining area of 11 kanals 1 marla as ' tf&iSjj '. In the subsequent/nmflfeaiuft'ey of 1950-51 the area of the graveyard is fi kanals 1 marla, ghair mumkin abadi 9 kanal and barani 1 kanal. In the jamabandi of 1954-55 no area is shown under graveyard. In the next jamabandi of 1958-59 an area of 19 kanals 1 marla is shown as gliair mumkin abadi and only one kanal as graveyard. In the jamabandi for the years 1966-67 and 7 1970-71 the entire khasra 1149 is shown as 'Ghair Mumkin Abadi'. Thus, it will be. seen that at the time of institution of the suit khasra No. 1149 was not shown as graveyard in the revenue papers. In the reported case of Muhammad Jan, supra, the entire khasra No. 127 was found to be graveyard and in that context the defendant's claim of superior right of preemption on the basis of contiguity was rejected. The learned appellate Court is wrong in holding the view that major portion of khasra No. 1149 is shown as graveyard in the revenue papers. The view may be correct with respect to past position of the land but at the time of institution of the suit and even some years before major portion of khasra No. 1149 was shown as Abadi. May be that people demolished the graves and constructed the houses or there were no graves at all. Be that as it may, the learned appellate Court's finding that entire khasra No. 1149 is graveyard is not supported by the revenue record. This being the position, I agree with the learned counsel for the plaintiff-petitioner that khasra No. 1149 is not proved to be waqf property. The appellate Court's finding is the result of misreading of evidence (and) not sustainable in law. 8. For the foregoing reasons, this civil revision is accepted, judgment and L_ decree dated 30.11.1985 of the appellate Court is set aside and that of the lower fl Court dated 7.12.1983 is restored. Parties are, however, left to bear their own I costs. (MBC) (Approved for reporting) Petition accepted

PLJ 1993 Peshawar 68 [Abbottabad Bench] PLJ 1993 Peshawar 68 [Abbottabad Bench] Present: MUHAMMAD BASHIR JEHANGIRI, J WALI MUHAMMAD and 3 others-Petitioners versus MUHAMMAD NAWAZ KHAN and others-Respondents Civil Revision No. 28 of 1993, dismissed on 20.3.1993 Civil Procedure Code, 1908 (V of 1908)- —S. 47 & O.VII R.10 read with Land Acquisition Act, 1894, Section 18-Plaint in suit for rendition of account—Return for filing in executing court-­ Acceptance of appeal against—Challenge to—Whether suit for endition of accounts by respondents qua amount received by petitioners as members of committee under Section 18 of Land Acquisition Act, is barred under Section 7 of C.P.C.-Question of~Section 47 does not bar emedy but only regulates orum for enforcement of rights-Question of rendition of accounts between petitioners and respondents neither arose in reference under Section 18 of Land Acquisition Act nor does it relate o execution, discharge or satisfaction of decree-Held? Appellate court does not appear to have committed any illegality or material irregularity in upsetting impugned order of trial Judge-­ Petition dismissed. [Pp.69,70&71]A,B,C&D PLD1963SC265re/. Mr. Haider Zaman KJian, Advocate for Petitioners. Date of hearing: 20.3.1993. judgment At the crucial juncture of acquisition of entire property of village Dari, Tehsil Haripur, the proprietary body of the village formed a Committee comprising of the four petitioners herein to receive the compensation for Shamilat and other property thereof. The principal objects of forming the Committee were "to pursue the cases of acquisition of joint and common property in the interest of the proprietary body" with authority to incur genuine expenses out of the compensation for the aforementioned land and for construction of mosques and hujras and wells etc. for the displaced persons in the village where they would settle themselves. The compensation for the Shamilat land and other common property duly awarded by the Collector Land Acquisition had been admittedly received by the petitioners in their representative capacity as members of the aforesaid Committee. It is claimed by the petitioners that out of the compensation they had incurred some amount "on the construction of mosque and other common interest enterprises of the villagers". It has been conceded on behalf of the petitioners "that the amount of compensation for Shamilat land which had since been enhanced by the Referee Judge at the first instance had been received by the petitioners (on furnishing) Bank Guarantee in pursuance of the orders of this Court". According to the petitioners in consequence of the latest judgment of the Supreme Court they were under a legal obligation to refund the amount received by them in excess of the amount ultimately determined by the Supreme Court. 2. It appears that the petitioners, on the pretext of aforesaid refund of some amount, were not inclined to pay the compensation money to the members of the village proprietary body. They were, therefore, obliged to file a suit through Muhammad Nawaz Khan, the representative and attorney of the petitioners for rendition of accounts qua.the amount of compensation that had been received by the latter after their objection petition under Section 18 of the Land Acquisition Act (1 of 1894) was accepted a d amount of compensation was enhanced. The petitioners vociferously contested the suit pleading, inter-alia, the nonaintainability hereof on the ground that the dispute could be only legally adjudicated upon by the Executing Court . 3. The learned trial Judge, sustaining the objection to the competency of the suit by his judgment dated 23.11.1991, returned the plaint under Order VII, Rule lOoftheC.P.C. 4. Feeling aggrieved, the respondents filed an appeal before the learned Additional District Judge, Haripur. The learned Appellate Court, while accepting the appeal and setting aside the impugned order of return of the plaint had observed that the finding of the learned trial Judge that "the points involved in the present suit can be agitated in execution and on separate suit on the same point is maintainable is not correct, because the previous litigations were references under the Land Acquisition Act (and) it was not a question for determination that respondents 1 to 4 (petitioners herein) should not be paid compensation of Shamilat Dch". In the same context, it was observed that the petitioners had admittedly received the compensation on behalf of the respondents and are, therefore, legally bound to account for it. It was, therefore, held that "the suit for rendition of accounts was maintainable and in no way it is beyond the jurisdiction of the Civil Court . "Resultantly" the suit was remanded under Section 151 C.P.C. to the learned trial Judge "for deciding it according to law after framing the issues" and "recording the evidence of both the parties." Hence this petition under Section 115 of the C.P.C. 5. The only proposition that has been agitated for determination is: whether' . the suit for rendition of accounts by the respondents, qua the amount received by the petitioners as members of the Committee under Section 18 of the Land Acquisition Act (1 of 1894) is barred under the provisions of Section 47 C.P.C. 6. Mr. Haider Zaman Khan, learned counsel for the petitioners, maintained that the Executing Court had been given exclusive jurisdiction over all questions and a separate suit is barred and it includes the relief of rendition of accounts. He further argues that the object of the provision of Section 47 ibid is to afford speedy relief to the parties in matters arising out of execution of a decree thus obviating a new suit for resolution of such issues, and, therefore, these provisions must be liberally construed to bar separate suits which involve questions relating to the execution, discharge or satisfaction of a decree. 7. Section 47 does not bar the remedy but only regulates the forum for the 'enforcement of rights in so far as "it channelizes all matters relating to the execution, discharge or satisfaction of the decree to the executing Court" and "leaves un-impaired the jurisdiction of the Civil Courts to entertain suits in relation to matters other than the aforesaid", See: Glnilam Muhammad vs. Sultan Mahmud& others (PLD 1963 SC 265). 8. Two conditions which are sine qua non for application of Section 47 are:- 1. The question should have arisen between the parties to the suit in which the decree was passed, or their representatives; 2. the question should relate to the execution, discharge or satisfaction of the decree. 9. Applying these two conditions to the instant case, it is obvious that the question of rendition of accounts between the petitioners and the respondents has neither arisen in the reference under Section 18 of the Land Acquisition Act in which the amount of compensation was enhanced nor in final judgment of the Supreme Court nor does it relate to the execution, discharge or satisfaction of the decree. On the contrary the question of rendition of accounts between the parties clearly falls outside the scope of the Referee Judge which has since merged into the judgment of the Supreme Court determining the compensation under Section 23 of the Land Acquisition Act for the Shamilat land. The rendition of accounts between the Committee and the respondents has got no nexus with rights and liability of parties herein which had arisen under the contractual liability conferred on the petitioners by the respondents. The question of rendition of accounts between the parties, in my considered view, is not the one that arises between the parties "in the suit in which the decree was passed under Section 18 of the Land Acquisition Act." 10. In view of what has been discussed above, the learned Additional District Judge does not appear to have committed any illegality or material irregularity in up-setting the impugned order of the learned trial Judge and in arriving at a correct decision. I, therefore, see no merit in this civil revision and dismiss the same in limine. (MBC) (Approved for reporting) Petition dismissed

PLJ 1993 Peshawar 71 [Abbottabad Bench] PLJ 1993 Peshawar 71 [Abbottabad Bench] Present: MUHAMMAD BASHIR JEHANGIRI, J ALI BAHADUR and 2 others-Petitioners versus MUHAMMAD SARWAR and another-Respondents Civil Revision No. 1031 of 1991, accepted on 30.5.1993 N.W.F.P. Pre-emption Act, 1987 (X of 1987)-- —-S. 35(2) read with Civil Procedure Code, 1908, Section 2(2)-Pre-cm pi ion-­ Suit for-Whether case would be governed by new Act-Question of-Prcsent controversy has been finally set at rest by Supreme Court holding that words "judgments and ecrees passed by courts have become final" employed in Section 35(2) of new Act mean "those judgments and decrees wherein suit of pre-emptor has been decreed by courts rendering it"-Word "decree" was thus held to mean only judgments and ecrees wherein suit of pre-emptor had been decreed and dismissal of pre-emptor's suit has been altogether excluded— Held: Case of petitioner would be governed by new Act-Petition accepted and judgment of trial court restored. fP.73]A&B 1992 SCMR 445 r Malik Fazal Hussain, Advocate for Petitioners.. Mr. Sultan Klian JadOon, Advocate for Respondents. Date of hearing: 22.3.1993. judgment This revision petition under Section 115 of the Civil Procedure Code (V of 1908) calls in question the judgment and the decree dated 9.6.1991 of the learned District Judge, Abbottabad, whereby he reversed the judgment and decree dated 27.11.1990 of the learned III Civil Judge, Abbottabad, by which the plaint iff-preemptor had been non-suited on the ground of his failure to make 'Talah.s'. 2. The brief facts of the case are that Muhammad Sarwar respondent No. 1 had pre-empted the sale of the land mutated in favour of the petitioner. This suit was dismissed by a learned Civil Judge on 31.10.1983. Respondent No. 1 went in appeal which was accepted by a learned Additional District Judge, Abbottabad, vide his judgment and decree dated 30.9.1984 remanding the suit for decision i afresh on the Issues which had been left undetermined by the learned trial Judge. A revision petition against the order of learned Add!: District Judge filed before j this Court was accepted on 29.11.1989 and the case was remanded to the learnedtrial Judge on the basis of the dictum of the Supreme Court in the case of 'Ahmad Versus Abdul Aziz' (P.L.D. 1989 SC 771). In the second round, the learned trial Judge non-suited the respondent-pre-emptor on the ground that he has "not complied with the mandatory provisions of Talabs etc. and since no decree h been passed in his favour upto 31.7.1986, therefore, his suit is not maintainable and stands dismissed". 3. The judgment and the decree of the learned trial Judge was assailed with eference to the case of 'Ghulam Sarwar vs. Abdul Jalil and two olhcrs'(P.L.D. 1991 SC 500) that "in the instant case a decree as such has been passed on two occasions .i.e., on 31.10.1983 and 30.9.1984 by the trial Court as well as by the first . appellate Court respectively and hence in the light of Section 35 of N.W.F.P. Preemption Act (X of 1987) (hereinafter called as the New Act) "this case shall b governed by the old N.W.F.P. Pre-emption Act 1950". The learned appellate Court held the view that under Section 35 (2) of the New Act decision refers to the passage of the decree not necessarily in favour of the pre-emptor and invoked the definition of 'decree' occurring in Section 2 (2) of the C.P.C. to define a decree to mean the "formal expression of adjudication which so far as regards the Court expressing it conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final". The learned District Judge relying on this definition held that the word 'decree' occurring in Section 35 (2) of the New Pre-emption Act was never meant to restrict the decree in favour of the pre-emptor but it included even the decree on-suiting him. In support of this view he placed reliance on 'Kundal Klian vs Aglia Khan' (P.L.D. 1990 Peshawar 21) which according to him has not been set aside upto 9.6.1991 when he was pursuaded to remand the case to the trial Judge for decision afresh on the remaining issues. . 4. Malik Fazal Hussain, learned counsel for the vendee-petitioner, placed reliance on the recent authorities of the Supreme Court reported as (1) 'Mubarak KJtan vs. Ali Rchman' (1991 SCMR 479) and (2) 'Rozi Klian and others vs. Syed Karim Shall and others' (1992 SCMR 445) to contend that the words "judgments and decrees passed by the Courts have become final" occurring in Section 35 (2)of the New Act have been held to be "those judgments and decrees wherein the suit of the pre-emptor had been decreed by the Courts rendering it" and thus the finding of the learned appellate Court that this expression enacted in Section 35 (2) of the New Act has been misconstrued by the appellate Court resulting in illegal remand of the case. 5. On the contrary, Mr. Sultan Khan Jadoon, learned counsel for preemptor-respondent referred to the-judgment of this Court in 'Kundal Khan's' case referred to above wherein the word 'final decision' in Section 35 (2) ante wiih reference to Section 2 (2) of the C.P.C. had been interpreted to mean that if at the time of promulgation of the New Act a decree in the pre-emption suit had already been passed and the appeal against it is pending which is a further proceeding relating to the cases in which the decree was passed the operation of the Old Act shall continue and govern the appellate Court's finding. 6. After hearing the learned counsel of the parties at length I find substance • in the contention of the learned counsel for the petitioner-vendee. The present' controversy has been finally set at rest in a recent judgment of the Supreme Court in the case of 'Rozi KJian and others vs. Syed Karim Shah and others' (1992 SCMR 445j wherein the words "judgments and decrees passed by the Courts have become final" employed in sub-section (2) of Section 35 of the New Act have been held to mean "those judgments and decrees wherein the suit of the pre-emptor has been decreed by the Courts rendering it". The word 'decree' was thus held to! mean only the judgments and the decrees wherein the suit of the pre-emptor has j been decreed and the dismissal of the pre-emptor's suit has been altogether j excluded. In consequence, the case of the petitioner would be governed by the I New Act. In 'Rozi Khan's' case referred to above it was also held that "the effect of j provisions of Section 35 of the New Islamic Law of Pre-emption is that if at the j time of enforcement of Islamic Law of pre-emption (i.e. 1,8.1986 when the principles of Islamic Common Law become applicable in the absence of 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 1 against it was pending "which is a further proceeding relating to the case in which i the decree was passed the said further proceeding shall be governed and decided under the provisions of the Old Act of 1950 and Act X 1987 would not be attracted". Similarly if a final judgment (decreeing the suit of the plaintiff-preemptor) had been passed before the aforesaid dates and the judgment was being challenged before the Revisional Court or the High Court in its writ jurisdiction such proceeding too shall be governed by and decided under the provisions of the Old Law. Reference may be made to C.A. No. 66-P/89 (Glntlam Allah M. Jaffar Klwn vs. Dur M. KJian) at page 457 of the report in 'Rozi Khan's case cited above. In that case no decree in favour of pre-emptor-plaintiff had been passed until 31.7.1986. The judgment of the High Court dated 14.11.1989 remanding the case j to the trial Court for decision on merits was, therefore, held unsustainable in law and in consequence the appeal was allowed and the judgment dated 14.11.1989 of the High Court was set aside and the pre-emptor was non-suited. The facts of the present case are analogous to that of Ghulam Allah M. Jaffar Khan's case(CA. 66-P/89) referred to above, therefore, the impugned judgment of the learned I District Judge is not sustainable in law. | 7. For the foregoing reasons, this revision succeeds and is allowed and the impugned judgment dated 6.9.1991 is set aside while that of learned trial Judge dated 27.11.1990 is up-held. 8. The result is that the pre-emptor-respondent stands non-suited, with no order as to costs. (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Peshawar 74 [Abbottabad Bench] PLJ 1993 Peshawar 74 [ Abbottabad Bench] Present: MUHAMMAD BASHIR JEHANGIRI, J GOVERNMENT OF NWFP, through SECRETARY, FOREST DEPARTMENT, and 3 others-Petitioners versus ASLAM KHAN-Respondent Civil Revision No. 107 of 1992, dismissed on 10.4.1993. Civil Procedure Code, 1908 (V of 1908)— —O. XXI R. 32(5)—Decree against petitioners—Execution of—Challenge to— Contention that decree for declaration and perpetual injunction being unexecutable , is untenable—It may be so in case of declaratory decree but a decree for permanent injunction is executable in mode provided for under Order XXI Rule 32(5), if it is violated or directions of court in terms of decree, are not carried out—Details of disputed timber and its price, have been furnished by concerned clerk of Gallies Forest Division on file of executing court—In replication, petitioners have categorically denied to have got any timber belonging to respondent—Held: Executing court was left with no alternative but to direct petitioners to pay to respondent decree-holder, amount orked out by him—Petition dismissed. [Pp.76&77]A&B AIR 1938 Patna 522 and AIR 1938 Lahore 369 rel . Mr. Muhammad Aslam Klian , A.A.G. for Petitioners. Haji Chulam Basil, Advocate for Respondent. Date of hearing: 10.4.1993. judgment The suit giving rise to this civil revision was instituted by Aslam Khan respondent for a declaration that he had become the owner by purchase of timber in Inder Seri Forest and that the defendants could not legally interfere in his rights. A relief for perpetual injunction so as to restrain the petitioners herein from interfering in his rights and preventing him from taking away the timber from the forest was also claimed. The learned Senior Civil Judge, Abbottabad non-suited the respondents. The learned District Judge, Abbottabad also affirmed the findings of the-learned trail Judge and dismissed the appeal on 24.7.1977. The respondents dis -satisfied with the findings of the learned District Judge, Abbottabad , filed a civil revision in this Court which was accepted by Inayat Ilahi Khan, J, as his Lordship then was vide his exhaustive judgment dated 7.11.1984, The petitioners challenged the judgment and decree of this Court in the Supreme Court of Pakistan which too was dismissed on 8.1.1991 and thus the judgment and the decree attained finality. The respondent moved the Court of Senior Civil Judge, Abbottabad , for the execution of the decree and in consequence vide his orders dated 14.1.1992 and 22.1.1992 directed the petitioners to produce the disputed timber in the Court or in the alternative to deposit its price or in default ordered the attachment of the vehicle of the concerned Forest Department. In consequence of the above orders, the Court took the custody of the Government Vehicles. Feeling aggrieved the petitioners filed an appeal against the above stated orders of the Executing Court before the learned District Judge, Abbottabad , which too was dismissed on 7.6.1992. 2. The petitioners have come up in revision to this Court against the orders of the two Courts below. 3. The only point which was agitated before me by Mr. Muhammad Aslam Khan A.A.G., appearing on behalf of the petitioners was that the decree assed by the learned trial Judge was not executable as it was only for the declaration and perpetual injunction and referred to the judgment of the Supreme Court dated 8.1.1991 to submit that the matter "regarding the conditions of the cut wood was to be determined by the lower Court after recording the evidence of the parties". The grievance of the learned A.A.G. is that the learned Executing Court has ignored to record evidence to determine the question of possession of the timber and also conditions therefor and the sale price and, therefore, the impugned orders of the two Courts below are not sustainable. 4. Haji Ghulam Basil, learned counsel for the respondent, on the contrary, opposed the revision petition and submitted that it was upon the submission f the learned Advocate General in the Supreme Court that about 20 years had gone when the contract was formulated and that the timber on the spot which he respondent wanted to remove would have totally gone waste or have been disposed of by the appellants in terms of the contract and that the espondent would at best be entitled to the sale price upon which the argument of the learnedA.A.G . has been built. The learned counsel for the respondent, therefore, submits that the disputed timber, according to the petitioners themselves, had either totally gone waste or would have been disposed of by the petitioners in terms of the contract and, therefore, the respondent at best is entitled to the sale price. In execution of that decree, according to the learned counsel for the respondent, the notice was issued to the petitioners by the Executing Court either to produce the disputed timber or to deposit the price thereof. The learned counsel for the respondent argues that when the petitioners failed to comply with this direction of the learned Executing Court it was left with no alternative but to proceed to execute the decree by the attachment of the vehicles of the petitionersdepartment. 5. The observations of the Supreme Court of Pakistan in paras 3 and 4 of the judgment are in accord with Order XX Rule 10 CPC providing that

here the suit is for movable property and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had. The contention of the learned A.A.G. that the decree for declaration and perpetual injunction is unexecutable is again untenable. It may be so in the case of declaratory decree but a decree for permanent injunction is executable if it is violated or the directions of the Court in the terms of the decree are not carried out. Under sub-rule (5) of Rule 32, Order XXI C.P.C. the Court can direct the act to be done so far as practicable by the decree-holder or some other person appointed by the Court. It provides that where a decree for specific performance of a contract or for an injunction has not been obeyed the Court may in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court at the cost of the judgment-debtor and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree. 6. It would thus be seen that the decree for permanent injunction is executable in the mode provided for under Order XXI Rule 32 (5) C.P.C. Reference may be made , to:(l) ' Toon Lai and others vs Sonoo Lall and others' (AIR 1938 Patna 522) and (2) 'Mosque known as Masjid Shahid Ganj and others vs Shromani Gurdwara Parbandhak Committee, Amritsar ' (AIR 1938 Lahore 369). 7. The details of the disputed timber have been furnished in his report dated 10.11.1991 by Khalid Khan, Senior Clerk of the Gallies Forest ivision , Abbottabad , the price whereof has been placed on the file in the Schedule at page 33 of the file of the Executing Court which amounted to Rs . 7,72,295.75 excluding the earnest money of Rs . 46,00,00 for which interest is also claimeld from the year 1970 onwards. In the replication of the petitioners put into the application for the execution of the decree they have categorically denied to have got any timber belonging to the respondent. The Court was, therefore, left with no alternative but to direct the petitioners to pay to the respondent decree-holder the amount worked out by him as aforesaid. 8. This petition has, therefore, no substance which is dismissed with costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Peshawar 77 PLJ 1993 Peshawar 77 Present: abdul rehman khan, J GHULAM NABI-Appellant versus NAZIR AHMED-Respondent F.A.O. No. 57 of 1992, accepted on 6.2.1993 (approved for reporting on 28.4.1993) Default-- —Tenant-Eviction of--Order of--Challenge to—Default in payment of rent-­ Ground of—It is well settled that only wilful default renders a tenant liable to ejectment and if court cannot definitely resolve as to whether default was wilful or otherwise, th'en doubt should be resolved in favour of tenant—Record bears out that rent was tendered through money orders but was not received by landlord-Tendering of rent through money orders has, in a way, been admitted by landlord--Material on record indicates that all along, tenant desired 10 pay rent on issuance of receipt but landlord never accepted this demand-Held: Anxiety of tenant to pay rent was manifest and he cannot be dubbed as defaulter on basis of evidence on record-Appeal accepted. [Pp.79&80]A&B Mr. Arshad Mahmood Lodhi, Advocate for Appellant. Mr. Riaz Ahmed Khan, Advocate for Respondent. Date of hearing: 23.1.1993. judgment This appeal has been preferred againsj the order dated 27.7.1992 of the learned Controller of Rents, Nowshera Cantt. whereby the petition filed by the landlord-respondent for ejectment of the appellant-tenant from the suit shop was accepted and consequently the appellant was ordered to vacate the shop in question within 30 days of the order. 2. Nazir Ahmad, respondent-petitioner brought an application in the Court of Controller of Rents, Nowshera Cantt. for eviction of the appellant-respondent from shop No.783/784 situate in Ghafqor Khan Mandi on the ground of default in payment of rent from September, 1987 to February, 1988. It was alleged in the petition that the tenant is in occupation of the shop at the rate of Rs.200/- P.M. and that he has defaulted in payment of rent for the above period and, as such, is liable to ejectment. In the written statement the tenancy was admitted but the rate of rent and the default was disputed. It was stated therein that the monthly rent of the shop is Rs.50/- P.M. and that when the landlord stopped receiving rent from February, 1988 then the rent of that month was sent through money order and also rent for the month of March, 1988 was tendered through money orders, but both were refused. The rent for the said 2 months was then deposited in the Court of Controller of Rents. It was further clarified that the petitioner has never issued rent receipt to the respondent. On the basis of the pleadings of the parties the following issues were framed:- 1. Whether the respondent is rent defaulter from September 1987 upto the date of filing the ejectment application i.e. 6.3.1988. 2. What is the monthly rent of the premises. 3. Whether the respondent has offered the due rent to the petitioner in time. 4. Relief. At the trial of the case Nazir Ahmad appeared as PW1, who reiterated what was stated in the petition. On the other hand the respondent himself appeared as RW1 and stated that he has occupied the shop in question as tenant right from 1957 at the rate of Rs.30/- P.M. However, when he insisted for issuance of receipt then the landlord informed him that if the rent was enhanced from Rs.30/- to Rs.40/- only then the receipt would be issued. But inspite of that no receipt was issued. The rent was subsequently enhanced to Rs.100/-, but no receipt had been issued. When the receipt of the rent was refused then the same was sent through money orders Ex.RWl/1 and RW/1/2 and thereafter the rent is being deposited in Court in pursuance of the order. Shamsher Khan and Khan Gul were examined in support of the stand taken by the respondent. 4. The learned Controller decided issues No.l and 4 against the respondent and while giving finding on issue No.2 the monthly rent was held to be Rs.100/-per month. The learned counsel arguing Cor the appellant submitted that no receipt was ever issued to his client and when the receipt of rent by the landlord was stopped from February, 1988 then the rent of February, 1988 and March, 1988 was sent through money orders which have been exhibited as RW1/1 and RW1/2 on record. This submission was controverted by the learned Advocate of the other side and submitted that the respondent has no printed receipts and issues the receipts on a simple paper. 5. 1 went through the record in the light of the above submissions. 6. It is by now well settled that only wilful default in payment of rent renders the tenant liable to ejectment, and if the Court cannot definitely resolve the point as to whether the default for a particular period was wilful or otherwise and as to whether the tenant can be declared as defaulter or not then the oubt should be resolved in favour of the tenant. In this case it was specifically pleaded in the written statement that the landlord never issued receipt for rent which was paid to him. On the other hand the landlord while appearing as PW1 stated that he regularly issued the receipts. It was admitted by him that the appellant is in occupation of the shop as tenant for the last 15/16 years. However, inspite of it the landlord did not deem it proper to produce the counter-foil of the receipts in Court to show the veracity of his plea. In the application for ejectment the rate of rent was shown to be Rs.200/- P.M. but the Court while deciding the relevant issue No.2 regarding the rate of rent held it to be Rs.100/- P.M. The appellant also produced money order receipts RW1/1 and RW1/2 indicating that the rent at the rate of Rs.100/- was sent to the petitioner on 25.2.1988 & 53.1988. The factum of the sending of the rent through money order y the tenant was not denied by the landlord in his examination-in-chief inspite of the fact that he knew that point of tendering rent through money order has been specifically raised in the written statement. Although in the cross-examination it has been stated that no money order was received by him from the side of the tenant. However, presumption of correctness is attached to official acts and the receipt of money orders will show that these were sent to the landlord. The tendering of rent through money order has in a way been admitted by the landlord as would be apparent from the trend of the cross-examination of the respondent-appellant and his witnesses on behalf of the landlord. The answer to a question put to the tenant in cross-examination was:— The statement of RW2, who is entirely an independent witness also supports the plea of the appellant-respondent that inspite of his insistence no rent receipt was issued. The material on record indicates that all along the tenant desired to pay the rent on issuance of the receipt to him but the landlord never accepted^his demand. The record also bears out that rent was tendered through money orders but was not received by the landlord. In these circumstances, the anxiety of the tenant Jo pay the rent was manifest and he could not be dubbed as defaulter on the basis of the evidence on reQord. The learned Rent Controller has notxlrawn correct inference from the facts proved on record and, therefore, his conclusion of ordering the ejectment of the appellant was unwarranted. This appeal is, therefore, accepted, the impugned order of the Controller of Rents is set-aside and the ejectment application is dismissed. However, the parties are directed to bear their own costs. (SD) (Approved for reporting) Appeal accepted.

PLJ 1993 Peshawar 80 PLJ 1993 Peshawar 80 [Abbotiabad Bench] Present: muhammad bashir jahangiri, J GOVERNMENT OF N.W.F.P. through SECRETARY, FOREST DEPARTMENT AND TWO OTHERS-Petitioners versus ZAIN KHAN-Respondent Civii Revision No. 125 of 1992, accepted on 24.2.1993 (approved for reporting on 8.4.1993) (i) Civil Procedure Code, 1908 (V of 1908)— —O.XLI R.31--Decree-Execution of-Objection petition against-Dismissal of bjection petition and appeal-Challenge to-An appellate judgment should state points, reason for determination, its decision thereon and reasons for its decision—When a number of legal, technical and factual objections are raised and if any or more technical objections prevail with the court then it is appropriate that factual objections should also be disposed of alongwith the. technical objections, so as to avoid remand of case—Held: Impugned judgment is not in consonance with requirements of an appellate judgment as laid down in Order LI Rule 31 of C.P.C.--Petition accepted and appeal remanded for disposal on factual and legal plane. [Pp.83&84]B,C&D (ii) Civil Procedure Code, 1908 (V of 1908)- —O. XLIII R. 3--Decree--Execution of—Objection petition against-Dismissal of objection petition and appeal-Challenge to-Additional District Judge has completely ignored that appeal before him was not against any order made during pendency of suit but it was an order passed in execution proceedings which were apparently treated by executing court as a proceeding and not a suit-Intimation to respondent of fact that an appeal is being preferred, has been prescribed as a condition precedent to entertainability of appeal in order to avoid taking him by surprise-Held: It is nowhere laid down that a notice of appeal against order passed by executing court dismissing objection petition is required within contemplation of Order XLIII Rule 3 of C.P.C. [Pp.82&83]A PLD 1977 Karachi 273 and PLD 1983 SC 693 distinguished. Mr. Muhammad Aslam Khan, A.A.G. for Petitioners. Mr. Shabbir Hussain Shah, Advocate for Respondent. Date of hearing: 24.2.1993. judgment Zain Khan plaintiff-respondent was granted a decree on 15.7.1986 by a learned Civil Judge First Class, Abbottabad, for perpetual injunction against the defendants-petitioners restraining them from interfering in the cutting of the marked trees measuring 7760 C.Ft. from the land bearing khasras No.2329, 2318, 2319, 2310, 2265, 2213 and 2130 and for making arrangements for the transportation and disposal thereof in accordance with the Rules of the Forest Department N.W.F.P. Against the judgment and decree aforesaid the appeal filed by the Government of N.W.F.P. through the Secretary Forest and Agriculture Deprtments and others was dismissed on 15.11.1987 by a learned Additional District Judge, Abbottabad. The Civil Revision by the Forest Department of N.W.F.P. filed under Section 115 C.P.C. against the judgments and decrees of the two Courts below was dismissed by a learned Single Judge on 16.12.1989. Zain Khan, decree-holder, filed an execution proceeding against the petitionersjudgment-debtors whereas the petitioner-Government filed an objection petition pleading that the sale money of the disputed timber having been deposited in the Executing Court, therefore, the decree-holder was not entitled to any more amount. 2. This objection petition was contested by the respondent-decree-holder. After appraising the evidence adduced by the parties the learned Executing Judge by his order dated 10.10.1991 dismissed this objection petition. Feeling aggrieved of the dismissal of their objection petition, the judgment-debtors went up in appeal to the District Judge, which was heard by Mr. Mukhtiar Ahmed Khan, learned Additional District Judge, Abbottabad. 3. After hearing the learned counsel for the parties, the learned Additional District Judge, dismissed the appeal vide his order dated 29.4.1992 on a technical ground. 4. Feeling still dissatisfied, the judgment-debtor-petitioners have come up in revision to this Court. 5. After hearing Mr. Muhammad Aslam Khan, AAG for the petitioners and Syed Shabbir Hussain Shah, the learned counsel for the decree- olderrespondent, I have come to the conclusion that the learned appellate Court has got rid of the appeal in a very slip-shod manner. As the impugned judgment is vey brief it would be worthwhile to reproduce the operative part of the impugned judgment which is as under:- "I have carefully gone through the legal proposition involved in the instant case in the light of provisions of Order 43 Rule 3 C.P.C. read with case law reported in P.L.D. 1983 S.C. 693 and I am of the considered view that pre-admission notice of such an appeal to the respondent was mandatory which the appellants have failed to serve upon the respondent or his counsel, therefore, the present appeal is not maintainable and is hereby dismissed with no order as to costs". 6. The learned counsel for the respondent-decree-holder concedes that he had, contended before the learned appellate Court that the notice within the contemplation of Order XLIII Rule 3 C.P.C. was necessary but the learned appellate Court dismissed the appeal only on this ground leaving aside the other potential objections both on factual as well as on legal plane. The learned appellate Court has placed reliance on two authorities: (1) "Qadar Ahmed Siddique. and 6 others v. Ramzan Alt and 6 others" (P.L.D. 1977 Karachi 273) and (2) "Dino Manekji Chinoy and 8 others . Muhammad Matin" P.L.D. 1983 S.C. 693) for the proposition that where an appeal against an order is preferred during the pendency of a suit, the appellant shall, before presenting the appeal, give notice of such appeal to the respondent or his advocate by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against and obtain an acknowledgement of receipt thereof for the information of the Appellate Court and that as the appellant judgment-debtor has not served such a notice therefore, the appeal was not competent and it was accordingly dismissed. 7. A bare reading of Order XLIII Rule 3 ibid would show that the party preferring an appeal against any order made during the pendency of the suit must give notice of such appeal to the respondent or his advocate before presenting an appeal by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against • (underlining is mine). The learned Additional District Judge has completely ignored that the appeal before him was not against any order made during the pendency of the suit but it was an order passed by the Executing Court during the execution proceedings which were apparently, treated by the learned Executing Court as a proceeding and not a suit. There was thus no warrant for the learned Additional District Judge to have dismissed the appeal on this score. In the first case of "Qadar Ahmed Siddique" on which the learned Appellate Court has placed reliance, has laid down two different propositions, none of which lays down that where an appeal against an order is preferred during the pendency of the suit the appellant shall before presenting the appeal give notice of such appeal to the respondent or his Advocate. Likewise the ratio deducible from "Dino Manekji Chinoy and 8 others" case, which I have been able to comprehend, is that the purpose of Order XLIII Rules 3 C.P.C. obviously is to avoid the delay that is occasioned in issuance of notices to and having service effected on the respondent in a case where the main 1 suit is still pending adjudication and only the legality or correctness of some iterlocutory order is under question. Hence intimation to the respondent of the fact that an appeal is being preferred and on the grounds on which this is being done, to avoid taking him by any surprise, has been prescribed as a condition precedent to the entertainability of the appeal. Obviously it has nowhere been laid down in both the authorities that any notice of an appeal against the order passed by an Executing Court while dismissing the objection petition, a notice contemplated within Rule 3, is required. 8. A perusal of the impugned judgment would show that it is not at all in consonance with the requirements of-an appellate judgment laid down in Order XLI Rule 31 C.P.C. An appellate judgment should state the points, reason for determination, its decision thereon and reasons for its decision. The term "points for determination" refers to all the important questions involved in the case. It is, therefore, necessary for the appellate Court to record the points for determination so that it could be ascertained whether the Court has dealt with all those points that were agitated. Now in the instant case, the learned counsel for the respondent has submitted before me that he had raised a number of other legal as well as factual objections but those objections were not at all adverted to by the learned appellate Court. Then it is appropriate if in such like cases where the technical objections are taken and if any one or more of them prevail with the Court then alongwith those the controversy on the factual aspect should also be disposed of so as to avoid remand of the case in order to obviate the delay in disposal of suits or appeals. If the appellate Court had also alongwith those objections adverted to the factual controversy, then there would have been no necessity of remand. 9. For the reasons stated above the impugned order of the learned appellate Court is absolutely not sustainable and, therefore, I have no hesitation to set it aside. The decree-holder-respondent is being deprived of the fruits of his decree in the suit which he has been able to obtain in ' i suit which was instituted on 31.7.1979. 10. In the circumstances, the appeal is rei ; odea to the learned District Judge, Abbottabad for disposal on factual and icgal plane. The file should be expeditiously sent back to the learned District Judge, Abbottabad to enable him to comply with the above direction. (SD) (Approved for reporting) Petition accepted.

PLJ 1993 Peshawar 84 PLJ 1993 Peshawar 84 Present: abdul KARIM KK\v KUNDI, CJ GOVERNMENT OF N.W.F.P. ,. c.-Petitioners versus FAZAL MAULA ere.-Respondents Civil Revision No. 370 of 1987, accepted on 22.5.1993 Civil Procedure Code, 1908 (V of 1908)-- —O. XVII R. 3—Evidence of defendants—Closure of—Pronouncement of judgment straightaway by trial court—Challenge to—It is settled that a decision under Order XVII Rule 3 CPC must be a decision on merits on consideration of entire material on record and after hearing arguments of parties-Held: Courts below have acted illegally and with material irregularity^ in. decreeing plaintiffs suit and dismissing defendant's appeal filed thereHgahist —Petition accepted and case remanded for further trial. [Pp.85&86]A Mr. Adam Klian , Assistant A.G. for Petitioners. Mr. M. Waris Khan, Advocate for Respondents. Date of hearing: 22.5.1993. judgment Civil Revision No.370 of 1987 arises in the background of facts that a suit instituted by Fazal Maula etc. as against the Provincial Government and its functionaries was proceeded in framing of issues arising out of the pleadings, that the plaintiffs closed their evidence and the case was fixed for the evidence of the defendants, but defendants meanwhile filed an application for amendment of the written statement which was allowed and fresh issues were framed but more or less on the pattern of the previous issues. Case was fixed for the evidence of the defendants without a statement of the plaintiffs that they were not to produce further evidence in the case. Defendants did not, however, produce their evidence on 25.9.1986 and Government pleader requested for adjournment, that the Court granted a last adjournment and fixed the case for the evidence of the defendants on 13.12.1986. On the day the defendant's evidence was again not in attendance and the Court poceeded to close the defendants' evidence under Order XVII Rule 3 CPC and straightaway granted a decree to the plaintiffs as against the defendants. The said decree was appealed against and the learned District Judge dismissed the appeal under observations that it was the bounden duty of the defendants to have produced their evidence on 13.12.1986, the last chance provided to them but they failed and as such the trial Court was justified in closing their evidence under Order XVII Rule 3 C.P.C. He also referred to the nonattendance of the representatives of the defendants on the said date and further a medical certificate appended to the memo, of appeal was dubbed as a lame excuse. Defendants have filed the instant revision as against the aforesaid judgments and decrees of the Courts. 2. During the course of hearing the learned counsel for the plaintiffsrespondents was confronted with a legal position that Order XVII Rule 3 C.P.C. was permissive and not mandatory and further court was supposed to proceed to decide the suit forthwith on merits, that in the process he was to hear the arguments of the parties and give judgment on each and every issue in the light of the evidence brought on record and that he was not supposed to summarily decide the case in the manner as to grant a decree -to the plaintiffs as against the defendants without discussion and decision on each issue. He was apprised that in case of decision on merits there can also occasion a dismissal of the suit in spite of the evidence on record if the same was not to prove the plaintiffs case. Case-law on the subject is settled that a decision under Order XVII Rul 3 C.P.C. must be a decision on merits on consideration of the entire material on record and after hearing arguments of the parties. It was thus found that the courts below have acted illegally and with material irregularity in decreeing the plaintiffs suit and dismissing the defendants appeal filed thereagainst and consequently this revision petition is accepted, judgments and decrees of the Courts below are set aside and case is remanded for further trial. Herein the defendants had failed to produce evidence in-spite of a last opportunity and they ask for a chance to produce evidence , hence they are granted a further opportunity to produce their evidence on payment of heavy costs in the sum of Rs.3000/ (Rupees three thousand only). (MBC) (Approved for reporting) Petition accepted.

PLJ 1993 Peshawar 86 PLJ 1993 Peshawar 86 Present: MUHAMMAD KHIYAR KHAN, J ATTA MUHAMMAD-Petitioner versus -Respondent Civil Revision No.502 of 1987, accepted on 6.3.1993. Specific Relief Act, 1877 (I of 1877)-- -~S.42-Declaration-Suit far-Absence of prayer for possession-Whether suit was not maintainable-Question of-Declaratory suit under Section 42 of Act is not maintainable when plaintiff being able to seek further relief than mere declaration of title, omits to do so-In this case, prayer is for declaration that entry of 1/48 share in Jamabandi in name of defendant (respondent) is wrong and that plaintiff is owner in possession of 7/1152 share-By purchasing share of co-owner of plaintiff, defendant became co-owner with plaintiff-Held: Petitioner, having not sold his share to respondent, remained co-owner and could institute suit for declaration without praying for consequential relief of possesssion-Held further: Lower Courts, knowing fully well that entries in Jamabandi were poved wrong, dismissed suit on mistaken view of law and concurrent findings are against aw and as a result of misreading of evidence-­ Petition accepted. [Pp. 53&54JA&B PLD 1964 (WP) Peshawar 159 rel. Mr. M. Atnin Kliattak, Advocate for Petitioner. Mr. Khial Muhammad Khattak, Advocate for Respondent. Date of hearing: 6.3.1993. judgment This revision is directed against the judgment and decree dated 5.7.1987 of the learned District Judge, Karak whereby the appeal of Atta Muhammad plaintiff-petitioner against the judgment and decree dated 22.4.1985 of the Civil Judge, Karak, was dismissed. 2. The facts giving rise to the present revision are as follows:- Atta Muhammad plaintiff-petitioner through Ajab Khan, his attorney instituted suit against Naseeruddjn defendant-respondent in the Court of Civil Judge, Karak for declaration to the effect that the entry in the 'Jambandi' of the year 1974-75 showing defendant-respondent as owner of 1/48 share was wrong as it included plaintiffs share also which he never sold to defendant-respondent. The suit was contested by the defendant-respondent who in his written statement besides raising preliminary objections took the plea that he had purchased plaintiffs share in the land also. The pleadings of the parties were reduced to the following issues:-- 1. Whether the suit is incompetent in its present form? 2. Whether the suit is within time? 3. Whether the plaintiff is estopped to sue? 4. Whether the plaintiff has got a cause of action? 5. • Whether wrong entries have been made in the revenue record? 6. Whether the plaintiff is entitled to the decree as prayed for? 7. Relief 3. The learned trial Court recorded the evidence which the parties wished to be recorded and then while discussing issues No.4 and 5 in the impugned judgment observed that the plaintiff-petitioner and Mst. Rahamzada etc: through 'Roznamcha Waqiaati' Ex.PW-1/4 sold their entire share to the defendant and that on the strength of 'Roznamcha' a mutation was entered. At the time of attestation of mutation, the share of the plaintiff was excluded from being sold while that of Mst. Rahamzada was sold but the entry in the 'Misli Haqeeat' 1974-75 and 'Jamabandi' 1978-79 would reveal that instead of transferring only 17/1152 share as shown in the mutation, the whole 24/1152 share was transferred in the name of the defendant-respondent. The learned Civil Judge therefore held that entries with respect to 7/1152 share were wrong and liable to be rectified. On issue No.l, the findings are that since the plaintiff did not ask for consequential relief for possession of the land therefore the suit was not competent under Section 42 of the Specific Relief Act. The suit was held as time barred under Article 120 of the Limitation Act on the view that the defendant-vendee took possession of the suit land on 27.8.1971 whereas the suit was institued on 31.7.1982 beyond the period of six years, from the date of accrual of (cause of) action i.e. 27.8,1971. Issue No.2 was therefore decided against the plaintiff. Issue No.3 was decided in favour of the defendant-respondent. In view of the findings on issues No.l, 2, and 3 plaintiff-petitioner's suit was dismissed vide judgment and decree dated 22.4.1985. 4. The plaintiff-petitioner assailed the judgment and decree of the lower Court in appeal before the learned District Judge, Kohat, who in a very brief judgment dated 5.7.1985 concurred with the findings of the lower Court that the suit for declaration under Specific Relief Act without consequential relief for possession was not maintainable, and that the plaintiff-petitioner's suit was time barred .under Article 120 of the Limitation Act. The appeal was accordingly dismissed with costs. The plaintiff-petitioner has now come to this Court in revision assailing the findings of the two Courts below on issues No.l, 2, 3 and 6. 5. Mr. MAmin Khattak, advocate, for the plaintiff-petitioner contended that the findings that the suit for declaration is not maintainable as no consequential relief was claimed, are the result of misreading of evidence because the plaintiff being in possession of the land was not required to ask for consequential relief for possession. 6. Mr. Khial Muhammad, Advocate, for the defendant-respondent contended that the Courts have rightly held the suit as time barred under Article 120 of the Limitation Act, for, plaintiffs suit was for correction of revenue entries and when wrong entry crept in 'Misli Haqeeat' of 1974-75, the suit should have been filed within six years. PLD 1972 Karachi 103 was cited. . 7. Having considered the respective contentions of the learned counsel for the parties and the law on the point I am of the view that a declaratory suit under Section 42 of the Specific Relief Act, 1877 is not maintainable when the plaintiff being able to seek further relief than mere declaration of title omits to do so. Here hi the instant suit prayer is for declaration to the effect that entry of 1/48 share in the 'Jamabandi' of 1974-75 in the name of the defendant is wrong and not binding on the plaintiff and that plaintiff is owner in possession of 7/1152 share. Ajab Khan attorney of the plaintiff-petitioner has not dis-owned possession of the land. He has in very clear words deposed that plaintiff is a co-sharer in the land and has not sold his share to the defendant. He denied the suggestion that the plaintiff-petitioner was not in possession of the suit land. The defendantrespondent by purchasing share of the land from the other co-owner has become a co-owner with the plaintiff-petitioner whose share was not sold on the strength of mutation No. 53228 attested on 27.8.1971. In this situation when the plaintiffpetitioner has not transferred his share to the defendant respondent, he remained co-owner and could institute suit for declaration without praying for consequential relief of possession. The Suit would have been barred only if plaintiff being able to seek further relief than mere declaration of title had omitted to do so. While discussing issues No. 4 and 5 the learned Civil Judge is quite clear in his mind that the entries in the revenue papers with respect to 7/1152 share are wrong and liable to be rectified but could not grant the relief to the plaintiff-petitioner because no prayer for consequential relief was made. To this the learned District Judge has also agreed. It is sad to note that the Courts knowing fully well that entries in the 'Jamabandi' 1974-75 were proved to be wrong, dismissed the suit on the mistaken view of the law. It is now well settled that wrong entry in the 'Jamabandi' gives a fresh cause of action and suit for declaration and for correction of wrong entries may be filed within six years from the date of knowledge of wrong entries in the 'Jamabandi'. Burden of proof is on the party in whose favour entry existes and not on party challenging correctness of such entry. Jamsherand others versus Abdul Jalil and others (PLD 1964 (W.P.) Peshawar 159) may be referred. The defendant-respondent has not been able to prove as to how the plaintiff-petitioner's share was shown in their name in the 'Jamabandi' of 1974-75. Solitary statement of Nasiruddin defendant-respondent to this effect can not be accepted -as correct. The concurrent findings of the Courts are against the law and are the result of misreading of evidence. I would therefore set aside the findings of the Courts on issues No. 1,2,3 and 6 and declare the suit maintainable, within time and plaintiff-petitioner entitled to decree as prayed for. 8. The result therefore is that this revision is accepted, judgments and decrees of the lower Courts are set aside and the plaintiff-petitioner's suit for declaration as prayed for is decreed against the defendant-respondent. Parties are left to bear their own costs. (MBC) (Approved for reporting) Petition accepted

PLJ 1993 Peshawar 92 PLJ 1993 Peshawar 92 [Circuit Bench, D.I. Khan] Present: QAZI MUHAMMAD FAROOQ, J SHORE KHAN-Petitioner versus NOOR DIN-Respondent Civil Revision No. 176 of 1991, dismissed on 16.1.1993 Oaths Act 1873 (X of (1873)- —Ss. 8 to 11 read with Qanun-e-Shahadat Order, 1984, Article 163--Offer of defendant that plaintiffs suit be decreed if he takes oath—Offer ccepted and oath taken on Holy Quran by plaintiff (respondent)—Suit decreed and decree upheld in appeal-Challenge to—Contention that Qanoon-e- hahadat envisaged two 'oaths, one by plaintiff and second by defendant, and trial court having not called upon petitioner to deny respondent's claim on ath, committed an illegality and material irregularity within meaning of Section 115 of CPC-Oath within contemplation of Sections 8 to 11 of Oaths Act tems from voluntary agreement between parties and has a binding effect on party making offer-Trial court recorded separate statements of parties on ath in respect of offer and acceptance and then took matter to its logical end-Held: Procedure adopted by trial court indubitably conforms to guidelines nd no case for interference is made out-Petition dismissed. [Pp.95&96JA,B&C NLR 1990 SC 657, PLD 1988 Pcsh. 65,1982 SCMR 908, PLD 1983 SC (AJ&K) 86, PLD 1988 Pesh. 86, PLJ 1992 Lahore 86,1991 MLD (Pesh.) 101 and PLJ 1987 Lahore 300 ref. Mr. Rustam JQian Kitndi, Advocate for Petitioner Malik Bashir Hussain Jam, Advocate for Respondent. Dates of hearing: 15.12.1992 and 16.1.1993. judgment This revision petition calls in question the judgment and decree dated 20.7.1991 of the learned District Judge, D.I. Khan which affirmed the judgment and decree dated 17.6.1991 of the learned Civil Judge, D.I. Khan whereby the respondent's suit for possession of a house situate in D.I.Khan.City was decreed pursuant to an oath taken by him on the Holy Quran. 2. The facts constituting the background of the case in brief are that the respondent Noor Din brought a suit on 18.7.1990 seeking possession of the suit house on the basis of title together with a declaration to the effect that he was its owner and the sale deed dated 4.1.1970 purported to have been executed by him in favour of his brother-in-law Bhore Khan, petitioner herein, being fictitious, without conideration and the outcome of fraud, was void and ineffective on his rights. It was alleged in the plaint that the suit house was the permanent abode of the respondent since 31.8.1965 when he had become its owner on the strength of a P.T.D. though at times he temporarily resided in his second house situate in village Paharpur where he owned landed property and had also established a small business. That sometime in the year 1969 his sister and her husband namely the petitioner took up residence in the suit house as licencees with an explicit understanding that they shall vacate the same as and when required. That the respondent used to stay in the suit house whenever he visited D.I. Khan and this practice continued even after the death of his sister which took place about six years ago. That a few months prior to the institution of the suit the petitioner started claiming ownership of the suit house on the basis of a spurious sale deed dated 4.1.1970 and refused to recognise him as its owner. The suit was resisted by the petitioner on the ground, inter alia, that he had purchased the suit house from the respondent for a sum of Rs.99/- vide the sale deed in question. The parties went to trial on as many as eleven issues. However, when the case came up on 17.6.1991 for recording the evidence of the respondent thl petitioner took the stance that the respondent's suit may be decreed if he was preapred to state while taking oath on the Holy Quran that he had not sold the suit house to him. The offer made by him was accepted by the respondent on which the learned trial Court recorded separate statements of the parties on oath in regard to the offer and the acceptance. Thereafter, the respondent took the requisite oath on the Holy Quran and resultantly his suit was decreed by the learned trial Court. Feeling aggrieved, the petitioner went in appeal before the learned District Judge, D.I. Khan but without success as it was dismissed in limine and hence this revision petition. 3. Assailing the impugned judgments and decrees the learned counsel for the petitioner contended; firstly, that Article 163 of the Qanun-e-Shahadat Order, 1984 envisaged two oaths one to be taken by the plaintiff in support of his claim and the other by the defendant to deny the plaintiffs claim but the learned trial Court had not called upon the petitioner to deny the respondent's claim on oath after he had taken oath in support of his claim and had thus committed an illegality and material irregularity within the meanings of Section 115 of the Code of Civil Procedure; secondly, that the suit was decided on the basis of oath taken by the plaintiff whereas an oath cannot be exacted from the plaintiff in view of the well-known saying of the Holy Prophet (P.B.U.H.) that "Evidence is incumbent on the part of the Applicant and an oath on that of the Respondent"; and thirdly, that the learned trial Court had decided the case on oath mechanically without taking into consideration the caution reflected in Muhammad Alt v. Major Muhammad Aslam and others (N.L.R. 1990 S.C. 657) that Courts should refrain from permitting parties to enter into oath arrangements, 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 apparent conduct of any of the parties appear to be ch s would make a mockery of oath. 4. The learned counsel for the respondent on the contrary submitted that the oath taken by the respondent being the outcome of the offer made by the petitioner was inviolable and the pocedure followed by the learned trial Court being in consonance with the provisions of the Oaths Act, 1873 was unexceptionable. Reliance was placed on Khan Sher v. Mst. Kabla and another (P.L.D. 1988 Peshawar 65). 5. The first contention raised by the learned counsellor the petitioner is misconceived as the oath taken by the respondent having emanated from the ffer made by the petitioner of his own free will and accord is governed by Sections 8 to 11 of the Oaths Act, 1873 and not by Article 163 of Qanun-e-Shahadat Order, 1984. The oath within the contemplation of Sections 8 to 11 of the Oaths Act, 1873 stems from a voluntary agreement between the parties and when taken, has a binding effect leaving the party making the offer with no choice to turn around and strike a discordant note as observed in Maulvi Muhammad Ramzan v. Muhammad Ismail (1982 S.C.M.R. 908), Firm Chiragh Hussain v. Khawaja Habib Joo (P.L.D. 1983 S.C. (AJ&K 86), Khan Sher v. Mst. Kabla and another (P.L.D. 1988 Peshawar 86) and Muzaffar All and 2 others v. Ch. Asghar AH (P.L.J. 1992 Lahore 86) while the oath envisaged by Article 163 of the Qanun-e-Shahadat Order, 1984 is entailed by the initiative taken by the plaintiff who takes an oath in support of his claim first and then on his application the Court calls upon the defendant to deny the claim on oath and in any event the Court is not precluded from recording evidence of the parties and deciding the case on merits as observed in Rehmatullah v. Nasir Khan and 7 others (1991 M.L.D. (Peshawar) 101), Nazir Ahmad v. District Judge, Laiah (P.L.D 1986 Lahore 137) and Muhammad Shahbaz v. Ghulam Rasool (P.LJ. 1987 Lahore 300). In technical terms the oath referred to in Article 163 of the Qanun-e-Shahadat Order, 1984 is a general oath and the oath provided by the Oaths Act, 1873 is a special oath and both are diametrically opposed to each other. 6. The second contention is no better than the first one because the oath taken by the respondent was not exacted from him but it was the result of a mutual agreement of the parties which is permissible under the Oaths Act, 1873. Needless to mention that the expression "exaction" contains an element of demand as of right and the provisions of the Oaths Act, 1873 providing for decision of a case on oath taken by the plaintiff in the wake of an offer made by the defendant have not so far been struck down as repugnant to the Injunctions of Islam. 8. The last contention is also without substance. The authority (N.L.R. 1990 S.C. 57) cited by the learned counsel for the petitioner is an instructive authority which has not imposed an embargo on the decision of a case on oath in accordance with the provisions of Sections 8 to 11 of the Oaths Act, 1873 ut hasonly laid down guidelines for implementing the agreement between the parties in respect thereof which are worded thus "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". The record of the case in hand clearly points out that the learned trial Court had not acted with lightning rapidity but had first recorded separate statements of the parties on oath in respect of the offer and acceptance and then taken the matter to its logical end. The petitioner had thus plenty of time to think over the matter and resile from the offer before appending signature to his statement but he stuck to his offer and as such he must thank himself alone for the consequences. The procedure adopted by the learned trial Court indubitably onforms to the guidelines highlighted above, therefore, a case for interference is ot made out. 8. For the foregoing reasons, this revision petition is dismissed. Parties to bear their 6wn costs. (SD) (Approved for reporting) Petition dismissed. THE END

PLJ 1993 Quetta 1 (DB) PLJ 1993 Quetta 1 (DB) Present: amirui. mulk mengal and iftikhar muhammad chaudhry, JJ IMAM BAKHSH-Petitioner versus GOVERNMENT OF BALUCHISTAN, THROUGH SECRETARY, LOCAL GOVERNMENT DEPARTMENT, QUETTA , and 3 others-Respondents Conts. Petition No. 298 of 1992, dismissed on 10.8.1992 » Baluchistan Local Government (Election of Chairman) Rules, 1979- —-R. 7 read with Baluchistan Local Government Ordinance, 1980, Section 16 & 17-Chairman of local council-Election of~Whether election of Chairman is to be conducted through secret ballot-Question of--According to Rule 7, election of Chairman for local Council in Baluchistan, shall be through ballots and not by raising of hands—Under Section 17 of Ordinance, elections of Local Council are to be held on basis of dult franchise through "secret ballots", but election of Chairman shall be in prescribed manner which is described in Rule 7, i.e. by ballot-It would be "in secret" only if it is so described under law or rules made thereunder-Legislature intentionally avoided use of word "secret ballot" and instead only used word "bollot"~It is well settled principle of construction that courts should adhere to plain meaning of words used in a statute-Word "secret" cannot be added to word "bollot"-HeId: Presiding Officer had no lawful authority to reject a ballot paper on ground that secrecy •» was not kept while casting vote-Petition dismissed. [Pp.3,4,5&6]A,B,C,D,E&F M/s S.A.M. Quadri and Ahmed Khan Leshari, Advocates for Petitioner. Raja M. Afsar, Advocate General for Respondents 1 to 3. Mr, Muhammad Asiam Chishti, Advocate for Respondent No. 4. Date of hearing: 30.7.1992. judgment Amiru) Mulk Mengal, J.-The petitioner and respondent No. 4 were candidates to contest election of Chairman of Union Council Proam District Panjgoor of Mckran Division and the siad election was held on 18.6.1992. 2. Sixteen members had to elect the Chairman. Eight votes were cast in favour of petitioner whereas respondent No. 4 got three votes. However, five votes were rejected on the ground that small pieces of papers were found annexed with the ballot papers indicating specified marks. Respondent No. 1 on 18.6.1992 issued a notification No. 8-330/92 (BLCEA) declaring the petitioner as returned Chairman of the Union Council Proam. 3. It appears that respondent No. 4 was aggrieved of the rejection of five votes and moved an application to Returning Officer (respondent No. 2) challenging the rejection of five votes contending that all the five votes were cast in his favour. Respondent No. 2 after calling for the record and in presence of parties counted the votes and found the rejected votes as validly cast votes in favour of respondent No. 4. He also observed that small pieces of papers were found in the ballot box with ballot papers. 4. As the petitioner and respondent No. 4 both had equal number of votes and there was a tie, therefore, as per rules the Chariman had to be elected through drawing a lot. The petitioner has challenged the order passed by respondent No. 2 in this Constitutional Petition. 5. Heard Mr. SA.M. Quadri Advocate for petitioner. Respondent No. 2 appeared in person and Mr. M.A. Chishti for respondent No. 4. We have also heard learned Advocate General. 6. It is pertinent to point out that respondent No. 2 had brought alongwith him sealed envelopes containing ballot papers. At the request of counsel for the parties, sealed envelopes were opened in the court in presence of the counsel for the parties and learned Advocate General. It was observed that the rejected votes were cast in favour of respondent No. 4 but each ballot paper had a piece of paper containing words like "diamond, green, notice, motor etc". After examining the same, they were again ordered to be sealed and returned to the Collector (respondent No. 2). 7. Mr. S.A.M. Quadri vehemently urged that Presiding Officer rejected five votes, immediately after opening the ballot box upon finding that these votes contained paper slips with specified indication which ex-facie violated the secrecy of the ballot. According to him counting of rejeced votes by respondent No. 4 was totally illegal on the admitted facts and thus serious prejudice has been caused to the petitioner. He urged with considerable emphasis that the validity of the result was final and could not be reopened. 9. Mr. MA. Chishti, on the other hand, stated that five votes which were rejected were in favour of respondent No. 4. Ground for rejection was that small pieces of paper were annexed with the ballot papers. Learned counsel argued that although as per Baluchistan Local Government (Election) Rules, 1983 the elections of Local Councils are to be conducted through secret ballots but there are separate Rules for election of the Chairman known as the Balochistan Local Council (Election of Chairman) Rules, 1979 (hereinafter referred to as the " "Rules) which contain no provision to that effect. He also contested the petition on merits. 10. The moot question requiring consideration would be whether relevant , law and Rules provide conduct of election of the Chairman through secret ballot or not. It is so because undoubtedly foreign object like piece of paper withspecified marks were found from the ballot box which were annexed by the Presiding Officer with the concerned ballot papers. The question arises whether this amounts (to) flouting of secrecy of the ballot, thus votes could not be counted i in favour of respondent No. 4?. ! 11. Before resolving the real controversy we would like to observe that it is an admitted position that some pieces of paper containing writings were found i alongwith the ballot papers by the Presiding Officer and during hearing of the appeal after opening boxes Returning Officer also noted the same. Some were also seen by us in presence of counsel for the parties after de-sealing of the "" envelopes, 12. We, now, come directly to the question, whether under the Rules, election for the Chairman of Local Council is conducted through secret ballots or otherwise.

1. In order to arrive at a just conclusion it would be necessary to briefly survey the relevant law pertaining to the election of Local Councils. First of all we see relevant provisions in the Balochistan Local Government Ordinance, 1980 • (hereinafter referred to as the "Ordinance"). Chapter-V of the Ordinance relates to elections and relative matters. Section 16 is pertinent which is reproduced hereinbelow:- "16. For every Local Council there shall be a Chairman who shall be elected in the prescribed manner; provided that the Chairman of Municipal Corporation may be designated as Mayor". So also Section 17 which provides provisions for election of members of the Local Councils is also reproduced for the sake of convenience:- "17. Save as otherwise providedelection of members of all Union and District Councils, Municipal Corporations, Municipal Committees and fown Committees shall be held on the basis of adult franchise through secret ballot. (2) Below the Union Councils/Municipal Committees there may be informal bodies at village level in the rural areas to be called village council or by any other appropriate name or all these bodies would be constituted on the basis of concensus of residents of the Village and Mohallah Committees in urban area and not through any formal elections. The procedure for obtaining such consensus shall be prescribed; (3) The Electoral unit may be multi-member or single member and in any multi-member electoral unit the candidates securing the highest number of votes shall be elected; and (4) Every voter within an electoral unit shall have only one vote irrespective of number of members to be elected from the electoral unit provided that at an election to a muslim or a non-muslim seat in any electoral unit only such persons shall be entitled to vote as are enrolled on the electoral roll prepared on the principles of separate electorate for such area". 14. From bare perusal of Section 16 it transpires that Chairman shall be elected in the "prescribed manner". The manner has been prescribed by the Government of Balochistan by the Balochistan Local Government (Election of Chairman) Rules, 1979. Rule 7 would be relevant which reads as under:— "7. Poll. If there are more candidates than one, the issue shall be decided by conducting a poll, provided that at least 2/3rd of the members elected for the Local Council concerned are present at the meeting. (1) Votes for the office of the Chairman shall be cast by ballot". 15. Thus it is clear that the election of the Chairman for Local Council in the Province of Balochistan shall be through ballots and not by raising of hands. We have already reproduced Sections 16 and 17 of the Ordinance. In Section 17 it was dearly stated that the elections of the Local Council shall be held on the basis of adult franchise through "secret ballot" but the election of the Chairman of Local Councils shall be in the prescribed manner which is described in Rule 7 i.e. by ballot. The legislature thus intentionally avoided to use the word "secret ballot" and instead only word "ballot" was used. R.F.A. Nos. 26 and 28 of 1991, decided on 20.7.1992 (approved for reporting on 18.8.1992) Land Acquisition Act, 1894 (I of 1894)- —S. 18—Land-Acquisition of~Compensation for-Award of—Challenge to—A Court while awarding compensation under Land Acquisition Act, must ascertain value on date of notification, considering various actors including nature and location of acquired land and sale price of adjoining lands-Exh. P/4 and Exh P/5 relate to sale transactions of land in same Mahal, which prima facie had been effected between different arties subsequent to notification under Section 4 of Act-These documents disclose sale consideration little above Rs. 1,12,000/- per acre—Admittedly land-owners purchased suit land in 1981 and there is no tangible vidence of improvement carried out on said portion of land-Held: On basis of available material, market and potential value of acquired land, at best would be amount contained in Exh. P/4 and Exh. P/5-HeId further: rial Court has based conclusion merely on whims or guess, thus slip-shod method by arbitrarily jumping at conclusion without assigning reasons, is highly disapproved- Compensation fixed at Rs. 1,12,000/- per acre. [Pp.l3,14&15]A,B,C,D&E 1991 SCMR 572 and AIR 1988 SC 165 rel. M/s Sharifuddtn Pirzada and Ehsanul Haq, Advocates for Niaz Muhammad and others. Ch. Ejaz Yousaf, Advocate for WASA. Date of hearing: 30.6.1992. judgment Munawar Ahmad Mirza. CJ.--R.F.A. Nos. 26 and 28 of 1991 are directed against same judgment and decree dated 2.10.1991 passed by learned District Judge (Ad hoc), Quetta whereby on setting aside award dated 26.11.1991; compensation of acquired-land has been fixed at Rs. 3/- per Sq. Foot besides compulsory acquisition charges admissible under law. Since legal and factual aspects agitated in both these appeals are identical, as such (these) are being decided through common judgment.
2. Relevant facts concisely stated are that an area of land measuring 203 Acres, 3 Rode 38 poles situated in Mahal Viala Mehtarzai Mouza Mehtar/ai, Tappa Baleli, Tehsil and District Quetta was acquired for establishing Waste Water Treatment Plant (Sewerage Project). Towards 6th May, 1990 Deputy Commissioner-cwwi-Collector, Quetta was informed that representative of WASA had selected above-mentioned area for said purpose. Consequently preliminary notification under Section 4 of Land Acquisition Act, 1894 was issued by the Collector, Quetta on 12.9.1990. Respondent/land-owners namely, Niaz Muhammad and others filed their objections on 8.10.1990 against acquisition of said land which was contested by WASA authorities. The Collector however, rejected stand of land-owners vide order dated 3.11.1991. Subsequently Commissioner, Ouetta Division issued notification under Sections 6 and 7 of Land Acquisition Act authorising Assistant Commissioner Sub-Division-cum-Collector to acquire land for carrying out sewerage project. Respondents on the basis of market-value claimed compensation at Rs. 5/- per sq. foot. Whereas Director Administration WASA pointed out that area sought to be acquired consists of barren, sailine and waste land, full of ditches, thus suited for requirement of Sewerage Project. It was professed by WASA authorities that maximum market value in the locality could not be more than Rs. 20,000/- (Rupees Twenty thousand) per Acre. Considering the material brought on record by parties, learned Collector gave award on 26.11.1991 whereby land owners were granted compensation to the tune of Rs. 25300/- per acre inclusive of 15% compulsory acquisition charges. Respondent/land-owners being aggrieved, on 17.12.1990 submitted an application under Section 18 of Land Acquisition Act seeking 3 reference to District Judge, Quetta, and claimed compensation at Rs. 5/- per sq. ft. WASA authorities vehemently contested the Reference asserting that market value was less than even twenty thousand rupees per Acre. Learned trial court on 26.5.1991 framed following issues and gave parties opportunity of leading evidence:-- 1. Whether the land of the petitioners was acquired by the respondents on less prevailing market value. If so to what effect? 2. What was the market value at the time of acquisition of land? 3. Whether the applicants are entitled for the relief claimed? 4. Relief. Record reveals that land owners adduced two witnesses namely (i) Abdul Karim Patwari and (ii) Muhammad Salim Property Dealer, besides attorney Niaz Muhammad. P.W. I Abdul Karim Patwari produced copies of jamabandi Ex. P/l to P/5 containing following details:-- s.no. Document Date. Area of land Price Location Price calcula­ ted on the basis of per-acrage i. 2. 3. 4. 5. Ex.P/1 Ex.P/2 Ex.P/3 Ex.P/4 Ex.P/5 6.10.1988 3.4.1989 31.5.1989 29.4.1991 24.4.1991 R-P 12-6 1-5 0-18 7-5 3-22 Rs.255000/- Rs.30,600/- Rs.58,800/- Rs.200000/-Rs.100000/- Mouza Mehtar zai Viala Mehtarzai Tappa Baleli. Rs. 83,950.60 Rs. 1,08,800/- Rs. 5,22666/67 Rs.1,12,280/70 Rs.1,12,276/06 P.W.2 Muhammad Salim deposed that land situated in Killi Mehtarzai Balcli is being sold at I he rate of Rs. two or two and half lac per Acre. During crossexamination he admitted that value of land is dependent upon its location, surroundings, distance from residential locality, size of plot. He conceded that value of a bigger piece of land is generally low and sufficiently different and variable from smaller piece of land. Petitioner Niaz Muhammad disclosed that suit-land was situated at a distance of 8 to 9 miles away from Quetta. He expressed that about 20000 feet of land was facing towards road. He also produced copy of Collector's Award Ex.P/7 given in 1983 fixing compensation of Rs. 50,000 in respect of land near AIR PORT which was highest limit under relevant law. He claimed payment of compensation of Rs. 5/- per sq. foot. During cross-examination it was admitted that suit-land was purchased by land-owners about 10 years back at Rs. 11000/- (Rupees eleven thousand) per Acre. He however volunteered that subsequently land was levelled with bull-dozer. Suggestion about acquired-land being barren or consisting of ditches was refuted. Whereas WASA authorities in rebuttal also adduced two witnesses namely (i) Abdul Karim Patwari and (ii) Hamid Latif Rana, Land Collector, WASA. Patwari RW/1 has produced copies of Jamabandi record Ex. R/l-A to R/7-A detaills whereof are mentioned below:- S.No. Exhibit No. Date of transac­ tion Area of land sold. Sale consi­ deration. Loca tion Value calculated per Acre. RP 1. Ex.R/1 30.12.1989 16-2 Rs.82000/- Mouza Rs. 20,436.14 Mehtar- 2. Ex.R/2 1.2.1989 3-9 Rs.13000/- zai Vinlla Rs.16,124.03 3. Ex.R/3 7.12.1988 38-17 Rs.143500/- Mehtar- Rs. 14,938.19 zai Tappa 4. Ex.R/4 10.8.1988 307-25 Rs.652375/- Baleli. Rs. 8,482.73 S. Ex.R/5 4.8.1988 8-2 Rs.26000/- Rs.12,919.25 6-. Ex.R/6 17.2.1988 7-29 Rs.25601/- Rws.13,256.18 7. Ex.R/7 17.2.1988 45-11 Rs.1,87,110/- Rs.16,530.98 R.W.2 Hamid Latif Rana explained that various areas of land were inspected, but eventually suit-land having barren terrain which consisted of ditches etc was found suitable for Sewerage Project. According to him market value of suit-land was assessed to be Rs. 20,000/-, amount whereof already stood deposited. During cross-examination it was not disputed that about 22000 feet of land was along side sa Ghaza Band Roa Learned District Judge on appraisement of evidence modified the award and A granted compensation to land-owners at Rs. 3/- per sq. ft., besides compulsory tc acquisition charges admissible under law vide judgment dated 2.10.1991 which has m been challenged by both the parties through R.F.A. Nos. 26 and 28 of 1991. ^ Operative portion is reproduced hereinunder:-- "On basis of the documents produced by the applicants and the Si respondents it is clear that the assessment was made in a very haphazard i way. No proper enquiry was conducted by the Collector. The learned tl District Attorney produced the record pertaining to enquiry by the le Collector. It is observed that the enquiry itself is not a judicial enquiry, C( but a bundle of correspondence between various government functionaries. The average rate of land calculated by the Collector is si erroneous. It was confronted to the District Attorney that whether there ; n is any land within a radius of 10 miles in Quetta price whereof is 20 paisas f per sq. foot. The learned District Attorney could not give any solid v example On the basis of the above discussion I have come to th e conclusion that the rate awarded by the Collector is rediculously less. The claim of the owner is Rs. 5/- per sq. foot which may be market price for the present but in the year when the land was acquired it was not more than Rs. 3/- per sq. foot. The average rate of price also comes the same which is based on the revenue record made available to the Court by the pplicant comprising of transactions effected between some other parties j in respect of the adjoining land. The award is accordingly set aside and j compensation of the land acquired should be paid to the applicants at the j rate of Rs. 3/- per sq. foot plus compulsory acquisition charges a t admissible under law. With these observations the references ar disposed off. The record received from the Collector be sent to back". Mr. Sharifuddin Pirzada, learned counsel for petitioners emphatically argued that land-owners are entitled to fair compensation which a willing buyer normally would pay to willing seller, keeping in view market value and potential capacity of land sought to be acquired. Learned counsel contended that suit-land had frontage towards Ghaza Band Road having greater potential value and was being « utilized by land-owners for more beneficial purposes. He also canvassed that land­ owners on account of acquisition were deprived of their livelihood, therefore, fair and appropriate compensation claimed by them ought to have been paid by the authorities. To supplement submission, reliance was placed on the dictum laid in following reported judgments:- (i) Tlie Special Land Acquisition Officer Bangalore vs. TAdinarayan Setty, (A.I.R. 1959 S.C. 429) (ii) Fazalur Rehman and others vs. General Manager S.I.D.B. and another (P.L.D. 1986 S.C. 158) (Hi) Mrs. Gun] fOiatoon and another vs. Tlte Province of Sindh through Secretary, Revenue Department, Karachi etc (1987 S.C.M.R. 2084) (iv) Market Committee Kanganpur through Administrator versus Rayyat AH ami others (1991 S.C.M.R. 572) (v) f.C.I. Pakistan Limited versus Salahuddin and others (1991 S.C.M.R. 15). Reference was also made to an unreported judgment, Government of Sindh through Mr. Abdul Majeed Sheikh vs. Syed Shakir Ali and others (C.P.L.A.No. 236- K of 1991) decided on 27.11.1991. Referring to observations contained in 1991 S.C.M.R. 572 it was urged that plus factors regarding proximity of suit-land to developed area, its frontage towards road, potential capacity were more than dis­ advantages attached to it, therefore, considering all aspects, claim of Rs. 5/- per sq foot, was quite fair and justified. Ch. Eja/ Yousaf, learned counsel for WASA strenuously challenging the impugned judgment urged that suit-land was admittedly purchased by land-owners towards year 1981 for sale consideration of Rs. 11000/- per Acre which at the relevant time undisputedly was its real and potential value. According to him whatever proportionate, increase of value be visualised, property would hardly fetch Rs. 20,000/- to Rs. 30,000/- per Acre, as rightly assessed by Collector after comparing various transactions carried out in same Mohal. Therefore amount of compensation fixed by Collector through Award dated 26.11.1990 reflects true market value of suit-land. It was canvassed that learned District Judge without assigning reasons had arbitrarily arrived at conclusions which are ex-facie defective. He maintained that amount granted through award was a fair compensation whereas claim of land-owners was highly excessive and unconscionable. Learned counsel explained that acquired-area consisted of barren, sailinc, tract of land having ditches and only small portion was facing towards Gha/a Band Road, which by itself is side approach. According to him it being remotely located waste-land had no potential value, thus found suitable for Sewerage Project. It was argued that evidence produced by land-owners does not mention potential or real value of property but on the contrary the documentary evidence negates his claim. However for opposing claim of land-owners reliance was placed by him on the observation in case Market Committee Kanganpur through Administrator vs. Rayyat Ali and others (1991 S.C.M.R. 572) and Malik Ainan and others vs. Land Acquisition Collector and others (PLD 1988 S.C. 32). We have carefully considered arguments advanced by learned counsel for parties and also perused the record. It may be seen that broad basis before the Collector for determining compensation in respect of acquired-land are contained in Section 23 of Land Acquisition Act. Similarly prohibiting factors concerning assessment of compensation are specified in Section 24 of said enactment. Honourable Supreme Court in case Market Committee, Kangangpur versus Rayyat All and others (1091 S.C.M.R. 572), while discussing various aspects came to following conclusions about plus or minus factors, which were also taken note of in A.I.R. 1988 Supreme Court 165. It would be profitable to reproduce here said aspects for effectively deciding real controversy raised in these appeals. "Plus Factors:- Smallness of size. (1) Proximity to a road. (2) Frontage on a road. (3) Nearness to developed area. (4) Regular shape. (5) Level vis-a-vis land under acquisition. (6) Special value for an owner of an adjoining property to whom it may have some very special advantage. Minus Factors:— (1) Largeness of area. (2) Situation in the interior at a distance from the road. (3) Narrow strip of land with very small frontage compared to depth. (4) Lower level requiring the depressed portion to be filled up. (5) Remoteness from developed locality. (6) Some special disadvantageous factor which would deter a purchaser". It was argued by learned counsel for land-owners that plus factors were larger in number than minus. He attempted to enumerate them by referring to nature of^ suit-land. However, scrutinizing the evidence in the light of available material it may be seen that acquired-land measures 203 Acres 3 Rodes 38 Poles. It was candidly conceded that area obviously being large would constitute minus factor. Suit-land is located about 8 to 9 miles away from Quetta City. It does not have close proximity to main Highway. Portion of said land however faces towards sideroad known as Ghaza Band Road. According to attorney of land-owners about 20,000 feet or 22,000 feet of acquired land has frontage towards Ghaza Band Road. It would be appropriate to mention here that one acre of land consists of 43560 sq. feet. Whereas size of plot measuring one Acre in rectangle shape would be ' 198 X ' 220, and a square piece comes to almost ' 208.70 X ' 208.70. Thus calculating the area falling towards frontage approximately would cover 10 or 11 Acres. It is therefore quite apparent that more than 190 Acres from acquired-land would be considerably away towards depth, clearly indicating minus-factor. Noevidence has been led by land-owners to show nearness of acquired-land to developed area. On the contrary evidence of opposite side suggests that suitproperty is sailine, barren and waste land consisting of ditches, far away from developed area, therefore, more suited for Sewerage Project. Obviously vagueness of the evidence adduced by land-owners dissuades from accepting stand canvassed on their behalf. There is no material to suggest that suit : land constitutes source for the subsistence of land-owners. They have not even alleged cultivation of land in their original claim. Nor any source for irrigating said land has been even pointed out. Absolutely no evidence showing payment of Malia or Ushar, has been produced. Testimony of attorney rather negates factum of cultivation, over any portion of acquired-land. In this back-ground and evidence, we would procee'd'to examine market value or real potential value of suit-land, propriety of Collector's award as well as impugned judgment. A Court while awarding compensation ! under Land Acquisition Act must ascertain value on the date of first Notification considering various factors including nature and location of acquired-land and safe price of adjoining lands. In the instant case acquired-land was admittedly purchased by land-owners towards year 1980-81. It remained in the same position till process of acquisition was completed. However, with passage of time, prices have considerably increased but estimated value must be based on material brought on record through evidence. Notification for acquisition, under Section 4 of Land Acquisition Act was issued on 12.9.1990. Land-owners have produced 5 copies of mutations Ex.P/1 to P/5 for establishing market value of lands in Mohal Mehtarzai. Ex. P/l concerns sale of lands on 6th October, 1988 for about Rs. 83,950.60 per Acre. Ex. P/2 shows sale of very small piece measuring 1 Rode and 5 Poles on 3rd April, 1989 for value of Rs. 1,08,800/- per Acre . Ex.P/3 relates to sale of only 18 Rodes on 31.5.1989 for Rs. 58,800/- indicating approximately Rs. 5,22,066/- per Acre . Ex.P/4 discloses sale of 7 Rodes 5 Poles on 29lh April, 1991 for rupees two lacs, which comes to approximate value of Rs. 1,12,280/- per Acre . Similarly Ex. P/5 wherein sale of 3 Rodes 22 Poles which also took place on 29.4.1991 showing sale consideration of Rs. 1,12,676.00 per Acre . Whereas Jamabandis Ex. R/l to R/7 brought on record by WASA authorities show an approximate sale price of Rs. 8,482/- to Rs. 20.436/- per Acre during February, 1988 till December, 1989. Regarding the nature of property, P.W. 3 Niaz Muhammad, Attorney has unambiguously admitted that land-owners did not themselves cultivate the acquired-land. His version about cultivation of suit-land by previous owner is fully contradicted by his assertion that bulldozers for levelling the land were used during year 1983. On the basis of above discussed evidence, the Court has to ascertain market value which a willing purchaser would pay to willing seller and s potential capacity of acquired land. None of the witnesses adduced by land-owners including their attorney have mentioned a word concerning potential value or capacity of acquired-land. No doubt mere past-sales can not legitimately form " basis for fixing compensation, never-the-less land-owners are bound to satisfactorily establish potential value if any and use to which said land could be put in near future, so that real value could be appropriately ascertained. It is pertinent to note that Ex. P/4 and Ex. P/5 relate to sale transactions of land in the same Mohal which prima-facie had been voluntarily effected between different parlies subsequent to date of notification. Land-owners have themselves relied upon the same as substantial piece of evidence. These documents disclose sale consideration little above Rs, 1,12,000/- (Rupees one Lac-twelve thousand) per Acre . There is nothing on record to reflect that said value has been incorrectly mentioned by the parties or for any reason lower price than actually paid was incorporated while recording Ex. P/4 and Ex.P/5. It may be seen that Ex. P/4 and Ex.P/5 speak of small pieces of land whereas acquired land relates to large-tract therefore normally prices vary, admittedly by all standards price of small piece of land in comparison to big area is always on sufficiently higher side. Considering these aspects even if maximum latitude is shown for ascertaining real potential value of acquired-land, we have to bank upon best evidence produced by land­owners. Obviously Ex.P/4 and Ex.P/5 relate to period subsequent to notification which normally had neither relevancy nor evidenciary value. Any how, real, proper or potential value (can be) ascertained keeping in view nature and size of acquired land, its intended use, proximity with developed area and frontage on main Road. Ex. P/l relates to sale of land on 6th October, 1988, at about Rs. 83.950/- per Acre, whereas Ex. P/2 mentions sale of land approximately at Rs. 1,08,800/- per Acre . The comparison of all these transactions shows gradual and moderate increase in value concerning small piece of land in Mohal Mehtarzai. Normally value of such small pieces can not form effective basis for large tract of land. However even if for purpose of awarding compensation the value of land on the basis of evidence led by petitioner is considered, the price per Acre would range between Rs. 83,0()()/- to that of Rs. 1,12,000/-. Attempt was made through oral evidence to establish that acquired-land has market value to the tune of Rupees two lacs or two and half lac per Acre. But there is absolutely no corroboration in that respect. On the contrary documentary evidence through Ex.P/1 Ex.P/2, Ex.P/4 and Ex.P/5 produced by land-owners completely belies the same. Besides entries (in) Ex. R/l to Ex. R/7 also negate such evidence. Thus no reliance can be placed on said verbal testimony. It is pertinent to mention here that Award Ex.P/C relates to acquisition of about 4 Acre, 1 Rode, 5 Poles of land on Airport Road for installation of PME/VOR equipment at Quetta Air Port. The location, size nature and potential value of said area of land has marked difference, from area acquired in the instant CI case which therefore cannot form basis for evaluating its correct market value. No doubt WASA authorities have produced evidence indicating maximum sale price of Rs, 20.000/- per Acre in said Mohal for similar kind of land. The amount mentioned in revenue entries Ex.P/1 to Ex.P/7 of same Moha! supplements stand taken by WASA. Admittedly land-owners purchased suit-land in year 1981. No portion of said land has at all been alienated or sold during this period. There is no tangible evidence of improvement carried out on said portion of land. Documentary evidence mentions value of land situated in the Mohal without specifying its potential capacity. Thus on the basis of available material market and potential value of acquired land, in our opinion, at best would be the amount contained in Ex.P/4 and Ex.P/5, in addition to compulsory acquisition charges, admissible under the law. It is regretfully noted that learned trial Court while passing impugned judgment has made certain remarks about methodology adopted by Collector while giving award dated 26.11.1990, but surprisingly it itself fell in serious error by failing to give reasons for determining amount of compensation payable to the land-owners. Trial Court has based conclusion merely on whims or guess, without _ making reference to material brought on record by the parties thus disregarding established norms and requirement of law for recording judgment. It is not under­ standable from impugned judgment, how learned trial Court has ascertained prevailing market value of suit-land in respect of lime-period when Notification for acquisition was issued by Collector. This slip-shod method by arbitrarily jumping at the conclusion without assigning reasons, is highly dis-approved. For the foregoing discussion, and consideration of ralio-decidendi in aforequoted reports we are inclined to hold that it would be just and fair to award compensation to the land-owners at the rate of Rs. 1,12,(X)0/- per Acre . They shall also be entitled to compulsory acquisition charges as admissible under the law. Payments on said basis be made to land-owners promptly. Impugned judgment and award of Collector are modified accordingly. Appeals are disposed of in above terms. Parties arc however left to bear their outi costs. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1993 Quetta 15 [DB] PLJ 1993 Quetta 15 [DB] Present: AMIRUL MULK MF.NGAI, AND IFTIKIIAR MUHAMMAD ClIAUDHRY, JJ GOVERNMENT OF BALUCHISTAN , LIVE STOCK DEPARTMENT, through its SECRETARY-Pctitioner versus LIVE STOCK EMPLOYEES UNION and 2 others-Respondents Constitutional Petitions Nos. 39 and 90 of 1992, accepted on 14.7.1992 (approved for reporting on 18.8.1992). (i) Factories Act, 1934 (XXV of 1934)- —S.2(/i) read with Workmen's Compensation Act, 1923, Section 2(/i) and Civil Servants Act 1973, Section 2(/;)(/;7)--Employees of Live Stock and Agriculture Departments-Formation of unions by-Challenge to— hether said employees are workers, workmen or civil servants-Question of~Under Clause (///) of Section 2(b) of Civil Servants Act, a person who is a worker or workman as defined in Factories Act or Workmen's Compensation Act, is not included in category of civil servant-Neither Labour Court has held that members of unions are involved in any manufacturing process as defined in«Section 2(b) of Factories Act, nor it was case of unions before Registrar-There is no finding either by Registrar or Labour Court that members of unions fall within definition of worker or workman as given in Section 2(/j) of Workmen's Compensation Act-Held: In absence of such finding of fact, impugned orders are without lawful authority and carry no legal effect-Held further: On account of bar contained in Article 212(2) of Constitution, Labour Courts and Registrar are not competent to pass an orders in respect of civil servants who cannot form a Trade Union as they are not governed by I.R.O.-Petitions accepted. [Pp.22,23,24,25&26] B,C,D,E,F,G,H v I,K,L,M&N PLD 1992 SC 127 rel. (ii) Laches— —Employees of Live Stock and Agriculture Departments—Forming of Unions by-Challenge to-Whether Constitutional petitions are not maintainable- Question of-Government was not party before Registrar of Trade nions nor Labour Court while passing orders of registration of Unions-Moreover, Government could not directly file an appeal for cancellation of registration within meaning of Section 10 of I.R.O. 1969-Only Registrar ould go for cancellation of registration before Labour Court-Government had, in fact, approached Registrar to move for cancellation but latter did not take any action-Government continuously wrote letters to Labour epartment and to her concerned Departments that employees being civil servants, could not rame Trade Unions or get them registered-Held: These petitions should not ail on preliminary objections raised regarding aches and acquiscence but should be decided on merits. [Pp.20&21]A PLJ 1987 SC 433 rel. Mr. H. Shakeel Ahmad, Advocate for Petitioner (in both Petitions). Mr. Zafar Mandokhel, Advocate for Respondent No.l (in C.P.No.39/1992). Respondent No.2: In person (in C.P.No.39 of 1992). Sycd Ayaz Zahooi; Advocate for Respondents 1 and 2 (in C.P.No.90 of 1992). ' Respondent No.3: In person (in C.P.No.90 of 1992). Date of hearing: 1.7.1992. judgment Aiuirul Mulk Mengal, J.--Following two Constitution Petitions were filed by the Government of Baluchistan through Secretary Live Stock Department and Secretary Agricultural and Cooperative Department challenging the registration of Live Slock Employees Union and Agricultural Baledar Employees Union Baluchistan as well as Agricultural Field Assistant Union Baluchistan. Declaration of the aforesaid Unions as CollectiveBargaining Agents was also challenged in these petitions: 1. Constitutional Petition No.39 of 1992; 2. Constitutional Petition No.90 of 1992. Paramount question for determination in the aforesaid two Constitutional petitions was identical, therefore, we proceed to decide both the aforesaid Constitutional Petitions through this common judgment. 2. Relevant facts in Constitutional Petition No.39 of 1992 are that Vaternary Assistants, Stock Assistants and Technical Staff of Live Stock Department formed a Trade Union in the name and style of Vaternary Assistants, Stock Assistants and Technical Staff Union Baluchistan. After formation of the Union it applied for registration to the Registrar of Trade Unions on 12.2.1979 which, however, was declined by the Registrar on 27.12.1979. Feeling aggrieved, the Union filed an appeal under Section 7 of Industrial Relations Ordinance, 1969 (hereinafter referred to as the "1RO") before the Labour Court. The matter was decided by the Presiding Officer 1st Labour Court Quetta who accepted the appeal and directed the Registrar Trade Unions to register the said Union. In pursuance whereof the Registrar registered the said Union vide registration o.RTU/DLW/QTA/108 on 16.2.1981. Thereafter the name ofthe Union was changed as Live Stock Employees Union. After sometimes of its registration the Registrar Trade Unions certified it as Collective Bargaining gent. 3. The plea of the Government in challenging the formation and egistration of the Union is that the members of the Union are employees of the Department of Government of Baluchistan and are Government servants as they are appointed, removed and dealt with under the Baluchistan Live Stock Department Subordinate (Grade-I to Grade-15) Service Rules, 1979 which have been framed under Section 25 of Baluchistan Civil Servants Act, 1974. Petitioner Government has also attached alongwith the petition Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1983 contending that all disciplinary atters in respect of such employees are dealt with by said Rules. It was contended that the Union was dormant and only since last year it started demonstration, agitation and went on strike. The Department has never recognised this union or its activities as such. It was further pleaded by the petitioner Government that since the Government was not a party in the proceedings of registration or before the Labour Court , therefore, no legal action could be taken by it. However, the counsel for the petitioner Government streunously urged that since the formation of union, the Government had made all efforts to de-register the union. Reference was made to letters dated 5.11.1990 approaching the Secretary with a request of de-registration of the Union. So much so that the Registrar was also approached to file complaint for the de-registration of the Union but he did not file any appeal/complaint to the Labour Court . Taking benefit of the I.R.O. the Union issued notices for strike and factually they staged strikes as a result of which the functions of the Department came to a stand-still. The main plea of the petitioner Government is that the employees of the Department who are members of the Union being civil servants and are governed by Baluchistan Live Stock Department (Grade 1 to 15) Service Rules, .... therefore they cannot form Union and such Union cannot be registered within the purview of I.R.O. 4. Necessary facts arising out of C.P.No.90 of 1992 are that the employees of the Department are Government Servants as they are appointed, removed, dealt with under the Baluchistan Agriculture Department (Extension and Research Wings) Technical Subordinate (Grade 1 to 15) Service Rules, 1983 which have been framed under Section 25 of Baluchistan Civil Servants Act, 1974, the disciplinary matters in respect of such employees are dealt with under the Baluchistan Civil Servants (E&D) Rules, 1983. The Beldars, Palaydars, Malis, Tractor Cleaners, Vehicle Clearners, Helpers, Head Malis, Tube-well Operators, Vehicle Drivers, Store-keepers, Budder, Crop Reporters, Tractor Drivers, Fitters, Mechanics and Film Van Drivers-cum-Operators etc who belong to categories of employees working in Grade 1 to Grade 8 formed a Trade Union in the name and style of Agricultural Beldar Employees Union Baluchistan. Said Union applied for registration to the Registrar Trade Unions Baluchistan who registered the Union vide Registration No.RTU/DLW/QTA/124 on 3.6.1984. Subsequently the Registrar certified the said Union as Collective Bargaining Agent under the provisions of I.R.O. The Government plea is that Government was neither a party nor given any notice by the Registrar during the said proceedings. Similarly Field Assistants, Farm Assistants, Overseers, Agricultural Inspectors who are working in Grade-5 to 9 formed a Union in the name and style of Baluchistan Agricultural Field Assistants Union, which was also registered by the Registrar of Baluchistan Trade Unions vide Registration No.7/RTU/QTA/1970 dated 8.4.1970. Subsequently the registrar certified the said Union as Collector Bargaining Agent. The Government has now challenged the Registration of both the aforesaid Unions on the ground that the same was in violation of provisions of I.R.O. because its members were neither workers nor workmen as defined by the I.R.O. In June 1990 the members of the said Union went on strike including hunger strike and remained absent from Government duty thus causing tremendous damage to the crops of Government Farms. Being confronted with such a situation, the Government asked the Law Department for taking appropriate action. Simultaneously Director Labour was requested to cancel registration of the aforesaid two unions. But he failed to do so. Hence these petitions. 5. Heard Mr. Shakeel Ahmad, Advocate for petitioners, Syed Ayaz Zahoor and Mr. Zafar Khan Mandokhail for respondents. Registrar Trade Unions was heard in person. 6. Learned counsel for petitioner Government in support of petition contended:- a) that the members of respondents Unions are not employed in an establishment or industry within the meaning of Section 2(xiv) of IRO; they on the other hand are employed in Agricultural Department, Government of Balochistan and object of employment is not to carry on any industry, therefore, neither they are workmen nor hey could form a Trade Union. Registration of the unions, therefore, is without jurisdiction; b) the members of respondent unions are civil servants and not workmen as such they were not entitled under law to form unions. They being governed by statutory rules framed under Section 25 of Civil Servants Act, 1974, provisions of I.R.O do not apply to them; c) that the members of respondents union are performing duties in the administration of State hence on this count also, the provisions of I.R.O. are not applicable as such, the registration of said unions is ab-initio void; d) that since the petitioner Government was not made a party either before Registrar of the Trade Unions Balochistan or before Labour Court , therefore, (he orders passed for registration are in violation of the principles of natural justice. 7. Mr. Ayaz Zahoor learned counsel for respondent unions controverting tiie aforesaid arguments pleaded as under:- i) the petition suffers from laches as the impugned orders regarding registration of the unions have been passed several years ago; besides this alternate remedy was available to the petitioner Government which was not availed hence the petition is not maintainable as such; ii) that the Government is estopped at this belated stage because it has negotiated with the unions without challenging their registration, hence petition be dismissed on this score alone; On merits learned counsel contended that members of the union are not in the civil service of the Province of Balochistan. Referring to Section 2(d) (iii) of the Civil Servant Act, learned counsel contended that a person who is worker or workman as defined in Factories Act, 1934 (XXV of 1934) or workmen's Compensation Act, 1923 (VIII of 1923) is not Civil Servant, hence the members of the respondent unions who are beldars, field assistants,, malis, budders etc. are workmen, therefore, fully entitled to form a Trade Union of their own choice and are also entitled to register the same under the I.R.O. The main contention, however, was' that since according to nature of work the members of Union are workers therefore provisions of I.R.O. shall apply to them. 8. While adopting the said arguments Mr. Zafar Khan Mandokhail added that members of the Unions are not performing duties in the administration of State. Reliance was placed on the case of Faqir Muhammad vs. Director of National Savings Mullan Region Multan (PLD 1992 S.C. 127). 9. Before proceeding to determine the pivotal point raised in these petitions, we would like to dispose of the preliminary objections regarding maintainability of these petitions as being hit by laches. Syed Ayaz Zahoor and Mr. Mandokhail Advocates strenuously urged that since years have passed when the unions were registered, therefore, the petitions are hit by laches.It may be observed that a's for as question of laches is concerned there is a stream of case law on the subject. Superior courts have sometimes dismissed writ petitions on the ground of short delays of months, whereas on the other hand constitutional petitions have een entertained challenging actions being taken over decades. Strictly speaking there is no law of limitation applicable to the filing of Constitutional Petitions. However, the courts have taken into consideration facts of each case in order to determine whether a writ was hit by laches or not. Thus it may be observed thai no hard and fast rule can be laid down in this behalf. 10. As for as peculiar circumstances in which the present petitions were filed, it was pointed out by Mr. Shakeel Ahmad that Government was not a party before the Registrar of Trade Unions nor before the Labour Court (while) passing orders of Registration of the unions. Furthermore under law the Government could not directly file an appeal for cancellation of the registration of the unions within the meaning of Section 10 of I.R.O. Said section provides that a registration of a Trade Union shall be cancelled if the Labour Court so directs upon a complaint in writing made by Registrar that Trade Union has contravened any of the provisions of the Ordinance, or provisions of its constitution, or have incorporated in their constitution any provisions which are inconsistent with the Ordinance/Rules. So only the Registrar could go for ancellation of the registration of Trade Unions before the Labour Court . Referring to the letters attached with these petitions it was argued that Government in fact had approached the Registrar to move for ncellation but Registrar did not take any action in this regard. Since no remedy was available to the Government and the unions were initially dormant or atleast not much active, therefore, it cannot be said that Government has accepted the registration of the unions and is thus estopped to challenge the same. Moreover the Government has continuously written letters to the Labour Department as well as to other concerned Departments inviting their attention that employees of the Department could not form trade unions or get the same registered being civil servants. Although the members of the Union placed documents howing that on their charter of demand therefore, provisions of I.R.O. shall apply to such employees, and they are entitled to form unions. 17. In order to appreciate the said arguments it is to be seen whether the employees of the respondent union are 'workers' or 'workmen' as defined in Section 2(h) of the Factories Act or such employees fall within the category of worker or workman in the Workmen's Compensation Act, 1923 as defined by Section 2(n) of the said Act. 18. Firstly we would see whether the employees of the Unions were found to be workers under Factories Act, either by the Labour Court or by the Registrar of the Unions. Prior to that we would like to reproduce the definition of worker under the Factories Act:- (h) "worker" means a person employed directly or through an agency whether for wages or not, in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoeverincidental to or connected with the subject of the manufacturing process, but does not include any person solely employed in a i clerical capacity in any room place where no manufacturing process 1 is being carried on". Mr. Shakeel while meeting the said argument contended that concerned Government Departments are not factories within the eaning of Factories Act. It was contended that only those persons who are employed directly or through an agency in any 'manufacturing process' are workers. Neither the Labour Court has held that the members of the union are involved in any 'manufacturing process' nor prima-facie it was the case of the members of the union before the Registrar that — they are involved in manufacturing process, herefore, it would be impossible to categorise these members in the definition of worker as defined in the Factories Act. 19. We see sufficient force in this contention. It is clear from the plain reading ! of the definition that mere nature of work does not automatically bring an employee in the category of a worker under Factories Act unless such a worker additionally proves that he in fact is involved in a manufacturing process as defined in Section 2(h) of the Factories Act. No finding to that effect has been given by the competent authority or the Registrar of the Union. 20. Adverting now to the definition of worker or workman in the Workmen's Compensation Act, it may be observed that workman has been defined in Section 2(n) as under:- "(n) "workman" means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is:- (1) a railway servant as defined in Section 3 of the Railways Act, 1890 (IX of 1890) not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in anysuch capacity as is specified in Schedule II, or (ii) employed on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the armed forces of Pakistan and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them. (2) The exercise and performance of the powers and duties of a local authority or of any department acting on behalf of the Government shall for the purposes of this Act, unless & contrary intention appears, be deemed to be the trade or business of such authority or department. (3) The Provincial Government after giving, notification in the official Gazette, nor less than three months' notice of its intention so to do, may, by a like notification, add to Schedule II any class of persons employed in any occupation, which it is satisfied is a hazardous occupation and the provisions of this Act shall thereupon apply within the Province to such classes of persons. Provided that in making such addition the Provincial Government may direct that the provisions of this Act shall apply to such classes of persons in respect of specified injuries only." A 21. The object of reproducing the definition clause of Workman's CompensationAct was to conclude whether the Registrar of the Unions or the Labour Court have at all determined that members of the said Unions who otherwise are employed in different Government Departments fall in the category of worker or workman as mentioned hereinabove before ordering for the registration of said unions. Because the condition precedent for employees of a Government Department to form a union would be to prove that they fall in the category of worker/workman; failing which the order/certificate of registration would be out of the corners of law. Government had negotiated with them but the Government has simultaneously moved the Labour Department for taking action under law against such unions. In these circumstances and respectfully following the principles laid down in PLJ 1987 S.C. 433, we are inclined to hold that these petitions should not fail on the preliminary objections raised regarding laches and acquisence but should be decided on merits as substantial question of law affecting the rights of the employees on the one hand and plea of the Government on the other is involved. 12. Counsel for the petitioners mainly urged that the members of respondent unions are performing their duties in the Administration of State hence provisions of I.R.O. do not apply to them in view of Section 1 (3)(b) of the I.R.O. On the other hand relying on the case of Faqir Muhammad Vs. Director of National Savings, Multan Region, (P.L.D. 1992 S.C. 127) learned counsel for the unions contended that the majority view of the Supreme Court on the subject is that the expression "Administration of State" should be interpreted in 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 the details of the Government. It, however should not be extended to cover those employees of the State who are workers and perform duties which should not be covered by expression "Administration of State" like Malis, Chowkidars, Budders, Beldars,, Tubewell Mechanics, drivers etc. 13. We have thoroughly gone through the said judgment. There was difference of opinion regarding interpretation of "Administration of State". However, the Referee Judge of the Hon'able Supreme Court on page 143 of the said judgment concluded as under:- "Following the test laid down in this judgment I am inclined to agree with my learned brother that the appellant, being a Chowkidar in a directorate concerned with mobilizing savings in the country, can hardly be described as a person employed in the administration of State". It is worth to mention here that this proposition had already come before the Supreme Court in the case of Employees Old-age Benefits Institution Vs.N.I.R.C. (1988 S.C.M.R. 765) where following conclusion was drawn:"The expression 'administration of the State' is to be interpreted in a 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 the details of the Government". 14. Likewise in Constitutional Petition No. 192 of 1991 [reported as PLJ 1992 Quetta 25 (DB)] a Division Bench of this Court while following the aforesaid ratio decidendi dismissed a petition wherein it was contended that thepetitioner factory had been set up as subsidiary of Shaheen Foundation Pakistan Air Force and beneficiaries therefrom are persons connected with or incidental to Pakistan Air Force. It was argued that by virtue of Section 1 (3)(b) of I.R.O. petitioner factory was exempted from the application of I.R.O. 15. In view of the aforesaid authorities we see no reason to place a different and eparate interpretation to the term "administration of State". But the question herein requires further probe and determination. According to petitioners' counsel the employees of the Association in fact are civil servants as they are governed by statutory rules known as Balochistan Agricultural Department (Extension and Research Wings) Technical Subordinate (Grade 1 to 15) Service Rules, 1983. These rules have been framed under Section 25 of Balochistan Civil Servants Act, 1974. Similarly regarding employees of Live Stock employees union, the Government of Balochistan has framed Balochistan Live Stock Department Subordinate (Grade 1 to 15) Service Rules, 1989 which have been framed under Section 25 of Balochistan Civil Servants Act, 1974; declaring that these employees are covered under Balochistan Civil Servants (Efficiency and Discipline) Rules, 1983. 16. Before proceeding further we consider it necessary to dispose of the preliminary objection raised by Mr. Ayaz Zahoor learned counsel for respondent union. It was canvassed that the employees of the said unions do not fall in the category of civil servants. Reliance was placed on Section 2(b)(iii) of Civil Servants Act which reads as under:- "b) 'Civil Servant' means a person who is a member of a civil service of the Province of Balochistan or who holds a civil post in connection with the affairs of the Province but does not include; (i) a person who is on deputation to the Province of Balochistan from the Federation or from any Province or other authority; or (ii) a person who is employed on contract, or on work charge basis, or who is paid from contingencies; or (iii) a person who is 'worker' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923). Much emphasis was laid on clause (iii) of Section 2(b) of the Civil Servants Act, wherein it is laid down that a person who is a 'worker' or 'workman' as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923 is not included [in the category of civil servants. It was further argued that since employees falling in this category have been expressly excluded from the definition of civil servant, 28. However, it may be observed that those employees of the said Government Departments, who consider themselves to fall within the category of worker/workman as defined in the Factories Act, 1934 and Workmen's Compensation Act, 1923 may apply afresh before appropriate forums who shall before passing any order on the same, determine whether they in fact fall within the category of worker/workman as defined in the Factories Act, 1934 or Workmen's Compensation Act, 1923 and then alone shall be competent to pass orders in accordance with law. In that event it would be necessary to issue notice to the Government/employer in order to furnish details of the nature of work or to place other necessary and relevant information regarding the duties being performed or salaries being drawn by such employees. The petitions are thus accepted with no order as to costs. (MBC) (Approved for reporting) Both petitions accepted.

PLJ 1993 Quetta 27 (DB) PLJ 1993 Quetta 27 (DB) Present: MUNAWAR AHMAD MIRZA CJ and IFTIKHAR MUHAMMAD CHAUDHRY, J RIAZ MUHAMMAD -- Petitioner versus GOVERNMENT OF BALUCHISTAN , THROUGH SECRETARY, HEALTH DEPARTMENT, and others - Respondents Const. Petitions No.299 and 314 of 1902, dismissed on 19.8. 1992 (i) Educational Institutions Admission to MBBS class — Refusal of - Challenge to — Article 16 of Prospectus lays down that if due to non-availability of eligible candidate in any category, seat falls vacant then candidate from other category of doctor's children shall be accommodated - Held: Since candidature of petitioner was rightly rejected on ground of studying outside province, seat in category B had obviously fallen vacant — Held further: Even otherwise petitioner, on rejection of his candidature, loses locus standi for challenging validity of admission granted to others — Petition [Pp30&31] A&B (ii) Educational Institutions Admission to MBBS class — Refusal of — Challenge to — Selection for reserve quota of doctors' children is made from amongst eligible candidates — Restrictions prescribed about studying outside province under Article 30 of Prospectus mutatis mutandis apply to reserve seats of doctors' children — It is not understandable why petitioner could not be educated at Usta Muhammad, his home town which obviously was at a lesser distance than Larkana -- Held: Explanation of petitioner being apparently non-convincing and unsatisfactory, his candidature was rightly rejected by Selection Committee. [Pp31&32]C&D PLD 1981 SC 522 and 1989 SCMR 407 rel. Mr.Basharatullah, Advocate for Petitioner. Raja M.Afsar, Advocate General for Respondents 1 & 2. Dr. M. Aslam, father of Respondent No. 3. Date of hearing: 17.8.1992. JUDGMENT Munawar Ahmad Mirza, CJ.- Petitioner is a local resident of Gandakha Tehsil Usta Muhammad. After passing matriculation examination he got admission in Government College, Larkana and passed F.Sc. Pre-medical from Sindh Education Board securing 583 marks. Father of petitioner is a Doctor serving in the Provincial Health Department. Accordingly petitioner applied for admission in the first year Bolan Medical College, Quetta amongst seats reserved for the children of Doctors. It is the case of petitioner that during current year, applications for admission in Bolan Medical College were invited for academic year 1989-90 and 1990-91. Three seats for each session, were reserved for the children of Doctors under Article 3(ix) of the Prospectus. Procedure for allocating seats amongst different categories of Doctors' children has been mentioned in Article 14 of the Prospectus which is reproduced below for ready reference: - "14. The Selection of candidates against the three seats reserved for the children of Doctors of Balochistan shall be made from amongst the eligible children of the doctors who are local of Balochistan or possess valid Domicile Certificate of Balochistan, according to the following three categories:- Category - A Children of doctors working as Professors, Associate Professors, Assistant Professors, Senior Registrar, Demonstrators and Registrars in the Bolan Medical College, Quetta with at least three years service. The children of retired and deceased teachers of Bolan Medical College are also eligible for the seat provided that the deceased teacher had at least three years service. One seat. Category- B Children of doctors serving in the Provincial Health Department with at-least three years service, other than those mentioned in Category 'A' above. The children of retired and deceased doctors shall also be eligible for the seat provided that the deceased doctor had at-least three years service. One seat. Category-C Children of doctors other than those mentioned in Categories 'A" and'B' above who are local domicile of Balochistan. The children of retired and deceased doctors falling in this category are also eligible for this seat; provided 22. Learned Labour Court while directing registration of the Veterinaryj Assistant.Stock Assistant and Technical Staff Union of Live Stock Department has) not at all taken this aspect into consideration. The only ground which has been! discussed and which found favour was that since the employees of the union do not! fall in the category of administration of State, therefore, they are workers and had I the right to form a union. Thus there is no finding either by the Registrar or by the. Labour Court that members of the Union fall within the definition of worker or workman. In absence of any such finding, which of course, is a finding of fact, ; order of registration of the union passed by the Registrar or the Labour Court, I would be without any lawful authority and thus the same would carry no legal 1 effect. 23. The reason for reaching to the said conclusion is that provisions of I.R.O.. shall apply only to the workman/worker but its application can not be extended to j the civil servants. There is a separate forum to determine the terms and conditions of service of the civil servant which is the Services Tribunal Balochistan. On; account of the bar contained in Article 212(2) of the Constitution of Islamic Republic of Pakistan, the labour courts and Registrar under I.R.O. are not competent to pass any orders in respect of the civil servants. In this view of the matter we are fortified by the observations of Hon'able Supreme Court made in the case of Faqir Muhammad Vs. Director of National Savings (PLD 1992 S.C. 127). J The relevant observations are reproduced as under.•- "There is yet another aspect of the matter. As an employee of the Federal Government he held a civil post in connection with the affairs of the Federation. Thus he was a civil servant within the definition of the term as given in the Civil Servants Act, 1973. Under Section 3(2), Service Tribunals Act, 1973, the Federal Service Tribunal has the exclusive jurisdiction in respect of matters relating to the terms and conditions of a civil servant. On account of the bar contained in Article 212(2) of the Constitution, the Labour Courts were not competent to entertain the appellant's petition. In the circumstances the order of the Labour Court and the Appellate Tribunal must be held to be without lawful authority and of no legal effect. I would support the judgment of the learned Chief Justice, although on grounds of my own. Accordingly, this appeal is dismissed with no order as to costs." Thus it may be clarified that all those members of Live Stock Employees Union, who do not fall within the category of worker or workman as defined in the Factories Act, 1934 or under Workmen's Compensation Act, 1923 shall be deemed to be civil servants and only those who fall within the category of worker/workman under the aforesaid two laws shall be entitled to form a union. Obviously civil servants can not form a trade union as they are not governed by the provisions of I.R.O. 24. From the above discussion we are inclined to set aside the order dated 31.12.1980 passed by Labour Court Quetta ordering registration of the Union as well as the order dated 16.2.1981 passed by the Registrar of the unions who registered the said unions in pursuance of the order of the Labour Court. 25. Adverting now to the agricultural Beldar Employees Union Balodustan and Agricultural Field Assistants Union Balochistan, it may be observed that a similar view was taken by a Division Bench of this Court in a Constitutional Petition No.60 of 1985. The judgment has been produced before us during arguments and we respectfully follow the same. Identical points were agitated in the said constitutional petition and following conclusion was drawn: - "We would, therefore, allow the above petition and d clare th impugned order of the learned Labour Appellate Tribunal as being without lawful authority and of no legal effect, but would remand the case to it with the direction to provide opportunity to the parties to lead evidence on the question, whether the petitioner is covered by the definition of worker or workman as given in the Factories Act, 1934 or the Workmen's Compensation Act, 1923 and, in case, the petitioners falls within the definition of either of the above two Acts, the original order of the learned Labour Court shall'be maintained." 26. Seen in the light of above observations the certificate of registration would I be without jurisdiction because the learned Registrar has not at all applied his mind jto this important aspect of the matter. Neither any notice was given to th concerned Government Department nor it was ventured by the Registrar to determine whether members of the Union fall within the category of worker or workman as defined in the Factories Act, 1934 or Workmen's Compensation Act, 1923. Without determining this pivotal point, order of registration of Agricultural t j Beldar Union and Field Assistant Union could not be passed. The reason being that I unless chaff is sifted from the grain, that is the workers amongst the employees ar separated from the civil servants, no order of registration could at all be passed. Any order so passed, therefore, would be without lawful authority and of no legal effect, because provisions of I.R.O. do not apply to civil servants as observe hereinabove. 27. Summing up the above discussion, it may be reiterated that unless Registrarf the Unions or Labour Court had come to the conclusions that the employees wh had formed unions fall within the category of worker/workman provisions of j I.R.O. do not apply and Registrar and Labour Court had no authority at all to adjudicate upon the matter; let alone ordering registration of such unions. We are, M therefore, inclined to declare the order of the Labour Court directing registration of the unions mentioned hereinabove as well as order of the Registrar of the Unions j issuing certificates of Registration of the said unions as having been passed without 1 lawful authority and thus of no legal effect.that the retired doctors/family of the deceased doctor is residing in Balochistan. One seat. Explanation. A doctor shall be one registered as such with the Pakistan Medical and Dental Council and the candidate shall have to produce the Certificate of registration of his/her mother, as the case may be, from the Council." Father of petitoner on 26.1.1988 submitted an application to Secretary, Government of Balochistan, explaining circumstances, whereby petitioner was compelled to obtain education from Sindh Province. It would be appropriate to reproduce below in-verbatum the said application: - "To The Secretary to Government of Balochistan, Education Department, Quetta. Subject: PERMISSION TO UNDERGO MY SON IN SINDH PROVINCE FOR EDUCATION Respectfully I may very kindly be excused to approach your kind and just honour with the following submissions for your kind decision/orders in the matter :- a) That my son (namely Mr.Riaz Muhammad Jamali) passed the Secondary School Examination as regular candidate from Government High School, Gandakha, District Jaffarabad. b) That I am serving as Assistant District Health Officer, at Dera Murad Jamali and there is no college facilities at Dera Murad Jamali. In the compelling circumstances, I had to admit my son at Larkana College, and at about all my family also settled with my college going son. c) By now learnt that permission of the Government of Balochistan Education Department is must in such situation. It is therefore earnestly requested that your valued orders with regard to permission as necessary may kindly be issued just to save from future complications. Yours Obediently, (Dr.Taj Muhammad Jamali) father of Riaz Muhammad 1st year student, Government College, Larkana Sindh." However, Selection Committee after due enquiry on 6th June, 1992 declared final list of successful candidates wherein admission of petitioner was declined. Reasons for rejecting petitioner's candidature are also, reproduced hereunder:-"DOCTOR'S CHILDREN (1989-90) Category-B. 1. Mr. Riaz Muhammad s/oDr. Taj Muhammad. The candidate appeared before the Selection Committee and was heard. He passed his F.Sc. Examination from Sukkur for which he could not satisfy the Committee with cogent reasons, so the candidate was rejected by the Selection Committee for studying F.Sc. at Sukkur under paragraph No.30 of the Prospectus of Bolan Medical College, Quetta during the academic session 1989-90".It may be seen that when application for admission of petitioner was pending consideration before Selection Committee, father of petitioner had approached the Chief Minister, Balochistan who by orders dated 9.4.1992 and 6.5.1992 directed admission of petitioner against reserved quota of Doctors' children. Petitioner feeling aggrieved from order of Selection Committee, rejecting his candidature has filed Constitutional Petition No.299/92 challenging admission of Miss Sadia Butt daughter of Dr.Muhammad Aslam Butt; and Constitutional Petition No.314/92 challenging admission of Rahmatullah son of Dr.Sahibzada Nematullah. The Principal Bolan Medical College, in both these petitions, has filed detailed comments supporting the stand of Selection Committee whereby explanation of petitioner's studying outside the province was disapproved. It was maintained that admission granted to private respondent was valid and proper. Mr. Basharatullah, learned counsel for petitioner strenuously contended that Article 3(C)(ix)(xii) provides for special seats allocated to children of Doctors. According to him requirement concerning admission for reserved seats for doctors' children was specified in Article 14 of the Prospectus (already reproduced above). According to him Article 30 of the prospectus regarding disability on the point of education outside the province of Balochistan was not applicable to special seats reserved for children of doctors. Raja M.Afsar, learned Advocate General emphatically opposing the : contention, drew our attention to Articles 15 and 39 of the Prospectus contending that doctors' children are also controlled by all conditions specified in the prospectus. On careful perusal of all the provisions of prospectus for year 1989-90. i and 1990-91 we have noticed that selection for the reserve quota of doctors'

children is made from amongst eligible candidates. Article 39 explicitly envisages that selection from each category of candidates would be made from amongst candidates who fulfill conditions laid down in the prospectus. The requirements for the eligibility of the candidates are contained in Chapter-II consisting of Article 27 to Article 34. Therefore we have absolutely no hesitation to hold that restrictions prescribed about studying outside the province under Article 30 of the Prospectus mutatis mutandis are attracted to the reserved seats of doctors' children. Therefore we now proceed to examine whether explanation offered by petitioner about his studying outside the province is at all plausible to grant him exemption. According to petitioner's own showings, he is resident of Gandakha Tehsil Usta Muhammad. Undisputedly there exists a College in Usta Muhammad, which duly caters for F.Sc. Pre-medical classes. Boarding arrangements are also available in said Institution. Explanation furnished by petitioner suggests that on account of non-availability of College facilities at Dera Murad Jamali, under compelling circumstances, he went to Larkana. Neither learned counsel could satisfy nor is it understandable why petitioner could not be educated at Usta Muhammad, his home town, which obviously was at a lesser distance than Larkana. The explanation of petitioner is apparently non-convincing and unsatisfactory, therefore, in our opinion his candidature was rightly rejected by the Selection Committee. Furthermore it may be seen that Selection Committee is a tribunal of special jurisdiction which on the given material has lawfully exercised discretion vested in it. There does not appear any mis-exercise of authority, glaring illegality or capriciousness in the impugned order of the Selection Committee as such on the principle enunciated in cases (i) Abdur Rehman Bajwa vs. Sultan and others (P.L.D. 1981 Supreme Court 522) and (ii) Fateh Muhammad vs. Government of Balochistan and others (1989 S.C.M.R. 407), the impugned order is un-exceptionable. Mr. Basharatullah, learned counsel for petitioner then attempted to argue that respondent Rehmatullah is son of a Professor falling in category 'A" of Article 14 of the Prospectus, whereas petitioner was contestant for a seat in category 'B' of Article 14 of the Prospectus. Therefore according to him his shifting from one category to another category was malafide action to deprive petitioner of his legitimate right for admission during session 1990-91. In this behalf it may be observed that Article 16 is self explanatory. It lays down that if due to non­ availability of eligible candidates in any category the seat falls vacant, then candidate from other category of doctor's children shall be accommodated. Since we have observed that candidature of petitioner was rightly rejected on the ground of studying outside the province within the purview of Article 30 of the Prospectus, therefore, seat in Category 'B' had obviously fallen vacant. Even otherwise petitioner on rejection of his candidature loses locus standi for challenging validity of admission granted to others. Lastly it was contended that Chief Minister has twice issued order for granting admission to petitioner against seats reserved for doctors' children, therefore, Selection Committee and concerned officials ought to have implemented the same. Suffice it to observe that admission of students in. the educational institutions is regulated by policy and instructions formulated in the shape of prospectus. No doubt government can change rules and instructions contained in prospectus from time to time. But under no circumstances existing policy of rules can be violated or deviated from by any executive order of Chief Minister. Therefore in our opinion directions regarding admission of petitioner issued by Chief Minister which are not covered by rules of the prospectus have no legal sanction. Additionally after final approval of list of successful candidates by the Government under Article 49 of Prospectus, previous directions if any would by implication stand superseded. Therefore, contentions raised in this behalf have no substance. Accordingly for the above reasons, we do not find any merits in the petitions which are consequently dismissed. Parties are left to bear their own costs. (MBC) (Approved for reporting) Petitions dismissed.

PLJ 1993 Quetta 36 (DB) PLJ 1993 Quetta 36 (DB) Present: MUNAWAR AHMAD MIRZA, CJ and IFTIKHAR MUHAMMAD CHAUDHRY, J Miss SHAZIA TABASSUM – Petitioner versus SELECTION COMMITTEE, BOLAN MEDICAL COLLEGE , QUETTA , THROUGH ITS CHAIRMAN, and 3 others -- Respondents Const. Petition No.307 of 1992, partly accepted on 14-9-1992. Educational Institutions Admission to MBBS class - Refusal of ~ Challenge to ~ Articles 30 and 37(d) of Prospectus clearly indicate that candidate for admission must have passed Matriculation Examination with science — Admittedly respondent No.4 has passed Matric Examination from humanity group — Selection Committee obviously does not enjoy power to relax rules — Held: Impugned order reflects an attempt of granting admission to respondent No.4 which is beyond scope of Prospectus and cannot be validated - Held further: Factually even if selection of respondent No.4 is declared to be without lawful authority, candidate having next higher marks would automatically become entitled to admission [Pp 39 & 40] A.B&C Mr. M. Aslam Chishti, Advocate for Petitioner. Mr. Zafar Khan Mandokhel with Mr. Tariq Mehmood, Advocates for Respondents. Raja M. Afsar, Advocate General for Respondent No.2. Date of hearing:7-9-1992. JUDGMENT Munawar Ahmad Mirza, C.J. Petitioner passed F.Sc. Pre-medical from Balochistan Board of Intermediate and Secondary Education, Quetta during session 1989 by securing 559 adjusted marks. Being a domicile resident of Chaman, she applied for admission in Bolan Medical College for the Sessions 1989-90 against reserved seats of Pishin District. Selection Committee on considering her merits, declined to grant admission, but kept the petitioner at S.No.3 of the waiting list. For convenience Merit list of the candidates who applied for Session 1989-90 is given below :- "Merit list of Pishin District for the Session 1989-90. It may however, be seen that (Respondent No.4) Mm Safia Haider daughter of Ghuhun Haider who otherwise obtained 576 marks in F.Sc. Pre-medical but had not qualified Matriculation examination with science, as required by the Prospectus. It is the case of petitioner that respondent No.4 was not entitled to admission, therefore, selection committee had acted in an arbitrary manner. Order of Selection Committee is reproduced below;-"The Selection Committee, after hearing the reasons, relaxed the condition of passing Matriculation Examination in Humanities group, as the circumstances were beyond their control, because no science teacher was posted in Chaman during the period of studies of the candidate Mm Safia Haider d/o Ghulam Haider Session 1989-90 under para No. 30 of the prospectus of Bolan Medical College, Quetta." Feeling aggrieved from above decision present petition was filed making following prayer :- "It is prayed that in consideration of above, learned court may graciously declare that, admission of respondent No.4 in Bolan Medicai College, for Session 1989-90 was without lawful authority and petitioner was entitled to be admitted against girl reserved seat against which respondent No.4 had been adjusted; (ii) learned court may be pleased to make appropriate directions for admission of petitioner to 1st Year M.B.B.S. Class of Bolan Medical College, Quetta for the Session 1989-90 against girls reserved seat of Pishin District, in place of respondent No.4." Mr. Muhammad Aslam Chishti, learned counsel for petitioner emphatically urged that Articles 29,30 and 37 of the Prospectus of Bolan Medical College make it obligatory for the candidate desirous to seek admission to have necessarily qualified Matriculation Examination with science. According to him respondent No.4 Miss Safia Haider lacked essential qualification, therefore, her admission by Selection Committee was unjustified and arbitrary. Mr. Tariq Mahmood, learned counsel for respondent No.4 vehemently opposing the petition, argued that petitioner had less marks than respondent No.4, therefore, she could not invoke Constitutional remedy. Learned Counsel emphatically contested that even if petition is allowed, admission can be granted only to the candidates having higher marks on the waiting list. According to him petition was infructuous. Learned Advocate-General also opposed the petition. It was canvassed that petitioner cannot be granted discretionary relief superseding the rights of candidates waiting for their turn on probable vacancy. We have carefully considered the arguments advanced by learned counsel for parties in the light of available record and relevant law. It may be seen that Articles 30 and 37(d) of Prospectus clearly indicate that candidate applying for admission must have passed Matriculation Examination with science. Whereas, in the instant case admittedly respondent No. 4 has passed Matriculation examination from humanity group. Selection Committee being creation of Prospectus is bound to regulate admission against District merit seats or reserved seats in accordance with conditions laid down by its provisions. This bpdy obviously does not enjoy any power to relax the rules. Bare perusal of impugned order reflects an attempt of granting admission to respondent No.4 (which) is beyond the scope of Prospectus which therefore cannot be validated. Thus relevant provisions of Prospectus have been distinctly misconstrued and misinterpreted. Similar question of law was duly considered by Division Bench of this court in Constitutional Petition No.285/90 Abdul Wasay vs. Government of Balochistan and others. Hon'ble Supreme Court in Civil Petition No.l31-Q/91 had also upheld said decision. Relevant portion from judgment of Hon'ble Supreme Court appearing at para-4 is reproduced below for ready reference:- "4. The learned counsel for the petitioner submitted that the petitioner had obtained more marks than the respondent No.4 and was eligible to the admission as such the order of the Selection Committee was without lawful authority. The admitted position is that the petitioner had not done his matriculation with Science subject and according to rule 30 (re-produced above) a candidate must have passed the Matriculation examination with Science subjects. The learned counsel submitted that the qualification for admission to the 1st year M.B.B.S. under Paragraphs 29 is that a candidate should have passed the Intermediate with Science (Pre-Medical). The petitioner had passed his F.Sc. examination in Pre-Medical therefore was entitled to the admission. He further submitted that Paragraph 30 is inapplicable as it is primarily concerned that a student in Balochistan should be given priority for admission. We are unable to subscribe to the contention of the learned. counsel. The two provisions are to be read together. Under Paragraph 29, the minimum qualification for admission to the 1st Year MBBS class has been mentioned and under paragraph 30 a candidate must have passed the Matriculation and Intermediate Examinations with Science and must have studied in Balochistan, unless the Selection Committee gives exemption for sound reasons. Paragraph 30 is to be read in conjunction with Paragraph 29. It is not to be read in isolation. Both these provisions apply to all the students who apply for admission to the Medical College." We have therefore no hesitation in concluding that admission granted by Selection Committee to respondent No.4 contravenes the rules aad exceeds " authority vested in Selection Committee by the provision of Prospectus. Reverting to petitioner's claim it may be seen that her name appears at ' Serial No. 3 of Waiting List. Factually even if selection of respondent No.4 (Miss Safia Haider) is declared to be without lawful authority, candidate having next higher marks would automatically become entitled to admission. The relief by invoking constitutional jurisdiction is based on equitable principles. Therefore, one who seeks equity must do equity, and no undue advantage can be obtained by petitioner superseding or depriving legitimate legal rights accruing to other candidates who have better eligiblity on merits within the district. Normally petition instituted by candidates who are not entitled to any relief is not maintainable. But in the instant case, it is heartening to note that SelectionCommittee has ignored earlier decision of Honourable Supreme Court on the identical principle of law. Under Article 189 of the Constitution decision of C Honourable Supreme Court is binding on all the forums. Therefore, glaringly illegal decision taken by Selection Committe cannot be allowed to perpetuate, therefore, same must be exposed. Consequently we are inclined to partly accept the petition and declare selection of respondent No.4 (Miss Safia Haider) through impugned order totally devoid of lawful authority and of no legal effect. Thus seat ' allocated to her shall fall vacant. Selection Committee should grant admission to I candidate next entitled on the basis of merit list, including the petitioner. Petition disposed of in the above terms. Parties are left to bear their own costs. (MBC) (Approved for reporting) Petition partly accepted.

PLJ 1993 Quetta 40 (DB) PLJ 1993 Quetta 40 (DB) Present: MUNAWAR AHMAD MIRZA, CJ and AMIRUL MULK MENGAL, J MUHAMMAD ANWAR MENGAL and 13 others - Petitioners versus PRIVATISATION COMMISSION, MINISTRY OF FINANCE, GOVERNMENT OF PAKISTAN , and 2 others - Respondents. Const. Petition No.416 of 1992, dismissed on 16-12-1992 Hydrogenated Vegetable Oil Industry (Control and Development) (Second Amendment) Act, 1992 (XI of 1992). Clause (4) — Employees of Chilten Ghee Mills — Termination of services of — hallenge to — Whether transferee organization had obligation to retain petitioners for a minimum period of 12 months after taking over control of Mills and whether remedy of writ jurisdiction can be available to them — Questions of— Clause (4) of Act explicitly prescribes competency of Federal Government to impose limitations providing terms and conditions of employees of privatized establishments in public interest — Held: Petitioners have acquired legal right by operation of law and execution of agreement and respondent No. 3 was bound to retain the for 12 months — Held further: Since relief sought in constitutional petition turns against only private limited company and relations between parties being primarily based on contract, are regulated by principle of master and servant, constitutional jurisdiction is not available — Petition dismissed. [Pp 43 & 44]A,B,C.D,E&F PLD 1969 Dacca 352, PLD 1979 Karachi 246.PLD 1981 SC 224, PLD 1984 SC 170,PLD 1966 SC 445, PLD 1966 SC 848,1971 SCMR 566, 1987 SCMR 1776, PLD 1979 Lahore 803, PLD 1984 SC 194 1990 SCMR 1404, 1990 MLD 546.PLD 1992 SC 531 and PLD 1992 Karachi 190 rel Mr. Tariq Mehmood, Advocate for Petitioners. Mr. M. Rlaz Ahmad, Standing Counsel, and Mr.K.N.Kohli, Advocate for Respondents. Date of hearing: 9-12-1992 JUDGMENT Munawar Ahmed Mirza, CJ. The Federal Government on 15th of September, 1973 promulgated Hydrogenated Vegetable Oil Industry Control and Development) Act, 1973 (LXV of 1973) for regulating operation and future development of Vegetable Oil Industry. In pursuance thereof Ghee Corporation of Pakistan was established and a unit in the name and style of Chiltan Ghee Mill was also installed at Sirki Road, Quetta. Recently under the policy for privatization of Industries Hydrogenated Vegetable Oil Industry (Control and Development) (Second Amendment) Act XI 1992 was enforced on 28th July, 1992, which regulates transfer of rights and proprietary interest of Vegetable Oil Industries. Later Privatization Commission of Pakistan was established to deal with and determine matter concerning disposal of said units and its auction after due publicity and affairs connected therewith.It is an admitted position that auction bids for selling Chiltan Ghee Mills Corporation Quetta to Private Sector were invited by Privatization Commission (respondent No. 1). Balochistan Trading Company (respondent No. 3) being successful bidder was transferred management and control of Chiltan Ghee Mills Sirki Road, Quetta on the terms specified in contract dated 8th of July, 1992 which, inter alia, contained following condition regarding rights, liabilities and retention of existing employees:- "4) According to Article 18.5 of the "Instructions to Bidders" the successful bidder shall take over the entire personnel (except the Managing Director, Chief Executive) under their management and their service matters shall continue to be dealt with in accordance with the relevant laws in force in Pakistan. The services of employees of the Projects shall not be terminated for 12 months from the date of take over. The Buyer, hereby indemnifies the Seller any claim or liability in respect of any employee whether presently in service or terminated before the date of this agreement. If there is any case pending in any court in respect of any employee against the Company or the Seller, the Buyer shall be solely responsible in respect of that litigation and shall hold the Seller indemnified against all such claims and liabilities. The buyer undertakes to pay legal dues such as Provident fund, Gratuity, etc. due to an employee of the Company when he/she eventually retires or leaves service. The buyer also undertakes to share the liability arising on account of Golden Hand Shake to the extent of fifty percent to be certified by Privatization Commission as per procedure laid down by the Commission. In case the total liability of the seller in no case shall exceed 20% of the sale proceeds from the Company." It may be seen that petitioners who undisputedly were employees of Chilian Ghee Mills continued performing duties in said Organization but their services were terminated on 29th of October, 1992. Feeling aggrieved from the same present petitions were filed claiming following relief:"It is accordingly respectfully prayed that the intended action of termination of petitioners' services on the part of respondent No.3 through impugned order dated 29-10-1992 may kindly be declared as totally illegal and without lawful authority. It may also be declared that respondent No. 3 is legally bound to retain the petitioners/employees for at least 12 months in pursuance of agreement executed by it with respondent No.2 through respondent No. 1 and respondent No. 1 and 2 are under legal obligation to see its implementation. Any other relief which the court may think fit and proper in the circumstances of the case may also be granted in favour of petitioners and against the respondents."Privatization Commission Ministry of Finance (respondent No.l) filed their counter-affidavit on 2-12-1992 wherein maintainability of petition has been challenged. However, it has been asserted that respondent No. 3 being transferee Organization was obliged to retain the employees for a period of 12 months from the date of its taking over. This respondent has supported claim of petitioners to the extent that their termination by respondent No. 3 was arbitrary and illegal. Respondent No.3 emphatically repudiated the claim and filed detailed counter affidavit on 16-11-1992. Maintainability of petition was challenged on the basis of various preliminary objections. It was pleaded that transferee organization has no obligation for retaining them in service because having received the amount of ^ratuitv and provident fund etc. they ceased to be emolovees of Chilian Ghee Mills, Quetta and thus were not entitled to services rights as claimed in the petition. Arguments were addressed by learned counsel for parties at length. Main question requiring consideration would be whether transferee organization had obligation to retain petitioners for a minimum period of 12 months after taking . over its control, if so whether remedy by invoking writ jurisdiction can be availed j by them.It may be seen that clause (4) of the Act XI of 1992 explicitly prescribes competency of Federal Government to impose limitations providing terms and conditions of employees of privatized establishment in public interest. It presupposes that agreement drawn between the parties in pursuance of clause (4) creates rights and obligations between Federal Management of transferee organization and existing employees. Accordingly petitioners have acquired legal B right by operation of law and execution of agreement dated 8-7-1992 as rightly conceded by learned Standing Counsel appearing for Federal Government and learned Advocate of Privatization Commission. Respondent No. 3 the Transferee Organization was bound to retain all petitioners for twelve months or pay their emoluments for said period. Apparently petitioners' termination from service contravenes categoric commitment of transferee organization as contained in terms j and conditions above-referred. However, important feature requiring consideration arises whether) declaration sought in this constitutional petition against action taken by respondent No.3 which is admittedly a private limited Company, can at all be granted while exercising jurisdiction under Article 199 of the Constitution. The answer would definitely be in negative. Although ostensibly there are three respondents i.e. C Privatization Commission, Ministry of Defence, Government of Pakistan and Ghee Corporation of Pakistan but relief sought turns against only private limited Company. This fact is further substantiated by the stand taken by above mentioned two Government departments. Thus well known principle that when action can not: be taken directly should not be allowed indirectly applies on all fours in this' matter. Even bare reading of Article 199 suggests that writ jurisdiction can be > invoked only in exceptionable circumstances where ordinary legal remedies are not adequate for striking down excess of authority, failure to exercise jurisdiction or patent contravention concerning express provision of law, by persons performing functions connected with affairs of Government. Evidently breach of obligation between private parties can not be got remedied by invoking constitutional I jurisdiction. For benefit reference can be conveniently made to the observation in cases (i) Syeda Sayeeda Banoo and another vs. Province of East Pakistan and others (PLD 1969 Dacca 352) and (ii) Muhammad Aslam vs. .National Shipping Corporation, Karachi through Chairman and others (PLD 1979 Karachi 246). Similarly it is well settled that relations between employer and employee primarily based on contract are regulated on the principle of master and servant. Therefore, constitutional jurisdiction for remedying their termination, dismissal or E other service rights can not be invoked. If authority is needed reference can be i made to the following reported judgments: - (1) Muhammad Yousuf Shah vs. Pakistan International Airlines Corporation (PLD 1981 S.C.224) (2) The Principal Cadet College Kohat & another vs. Muhammad Shoab Qureshi (PLD 1984 SC-170) (3) Zainul Abidin versus Multan Central Co-operative Bank Ltd Multan (PLD 1966 Supreme Court 445). (4) The Chairman East Pakistan Industrial Development Corporation, Dacca and another vs. Rustom All and another (P.L.D 1966 Supreme Court 848). (5) Lt. Col. Shujauddin Ahmad vs. Oil and Gas Development Corporation (1971 SCMR 566) (6) Qari Yar Muhammad vs. Anjuman-e-Islamia (1987 S.C.M.R 1776) (7) Ch. Abdul Rashid vs. Capital Development Authority, Islamabad and others (P.L.D. 1979 Lahore-803) (8) Anwar Hussain Vs. Agricultural Development Bank of Pakistan and others (P.L.D 1984 Supreme Court 194) (9) Sindh Road Transport Corporation through its Chairman vs. Muhammad Ali G.Khokhar (1990 S.C.M.R. 1404) (10) Abdul Rab Jaffery Versus Rashid D. Habib and others (1990 M.L.D. 546) (11) Raziuddin vs. Chairman, Pakistan International Airlines Corporation and 2 others (P.L.D 1992 S.C. 531). (12) Capt. Rafiq Ahmad Shaikh and others Vs. Pakistan through the Secretary, Ministry of Defence, Islamabad and others (P.L.D. 1992 Karachi 190) i For the above reasons writ is declined. Petitioner shall however, be free to seek appropriate remedy before forum of competent jurisdiction. In the peculiar ^circumstances of the case parties are left to bear their own costs. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Quetta 45 (DB) PLJ 1993 Quetta 45 (DB) Present: AMIRUL MULK MENGAL AND IFTIKHAR MUHAMMAD CHAUDHRYJJ Mst. DILSHAD SULTANA - Petitioner versus NOOR MUHAMMAD and another — Respondents Const. Petition No. 121 of 1992, dismissed on 17.9.1992.s Family Courts Act, 1964 (W.P.Act XXXV of 1964) S.10 — Dissolution of marriage — Suit for — Pre-trial conciliation efforts — Whether Family Court had jurisdiction — Question of — For pre-trial and post-trial reconciliation, Family Judge acts as arbitrator with a view to effect compromise between spouses in order to save matrimonial life from further deterioration — Petitioner of her own accord agreed for conciliation and she put up her signature on order sheet as a token of acceptance of same — Respondent had produced receipt of rent of house taken by him on rent for providing separate accommodation to petitioner as per compromise — Held: Impugned order has been passed with lawful authority and jurisdiction by Family Judge — Held further: However Family Judge had no lawful authority to issue warrants of arrest of petitioner at instance of respondent — Petition dismissed. [Pp.48,50,51 £52 | A,B,C,D,E,F& G Raja Rab Nawaz, Advocate for Petitioner. Syed Ayaz Zahoor, Advocate for Respondent No. 1. Date of hearing: 10.8.1992. JUDGMENT Iftikhar Muhammad Chaudhry, J. -^ Petitioner M.vf.Dilshad Sultana daughter of Ashiq Hussain Khan, had approached this Court through Constitutional Petition for the following relief: " It is, therefore, prayed that order and decree dated 18.4.1992, passed by Respondent No.2 may kindly be declared illegal and without lawful authority. It is further prayed that the suit of the petitioner be transferred to any other Court for the just decision in accordance with the provisions of law. Family Judge through-out the proceedings had remained biased, harsh and intolerable and she forced the petitioner to join the respondent No. 1 at any rate. 5. On the other hand Syed Ayaz Zahoor Advocate learned Counsel appearing for respondent vehemently repudiated the assertions made by petitioner's Counsel and he contended that the Family Judge strictly in accordance with provisions of Section 10 ot the Family Courts Act had effected re-conciliation between the parties. The Family Judge had legal authority to pass an order with the consent of parties after having settled the terms which were agreed by both of them, therefore, the order dated 18.4.1992, being a consent order is not open to any exception. Thus discretionary jurisdiction under the Constitutional Jurisdiction may not be exercised in favour of the petitioner. | 6. We have heard the Counsel for the parties and with their assistance record I of the case has also been perused. Moot question for consideration would be (regarding the jurisdiction and powers of Family Judge at the stage when pre-trial (proceedings are conducted. Section 10 of the Family Courts Act 1964, (here-injafter referred as Act) contemplates that the Court shall ascertain the points at issue between the parties at the pre-trial stage and attempt will also be made to effect a compromise or re-conciliation between the parties if this be possible. Connotation re-conciliation and compromise in its language reveal to adopt such measures which can be proved a factor for the harmonious union between the spouses after redressal of grievances between them which had led to have re-course to litigation. It is observed here that phenomena of pre-trial and post trial proceedings as has been embedded in the Act had been adopted from (Soora-a-Al- Nisa) wherein it has been described as follows:- "And if you fear a breach (Shiqak) between them twain (i.e. the husband and wife) appoint an Arbitrator from his folk and an Arbitrator from her folk. If they desireamendment Allah will make them of one mind. Lo Allah is ever knower aware". A perusal of above Holy Verse would indicate that to settle disputes between spouses attempt is to be made to effect a reconciliation before making final determination relating to the tie of marriage. It can be further understood from the above Verse that an arbitration Council has to be constituted comprising of one member from the family of Husband and one member from Wife's family with authority to probe in real cause or causes of the dispute between the parties and arbitrators would also make endeavours to find out a suitable solution of the dispute.The theory introduced by Holy Quran in this context also conceives another ideal principle i.e. that the members of the Family should preferably be taken as arbitrators such like elders notables and Naik Muni because they would be resolving the dispute with great responsibility keeping in view the honour and the grace of both the families as well as spouses. After the inception of Holy Quran during the days of Hazrat Usman and Hazrat Ali (Allah be pleased with them) at two occasions the above injunction practically was invoked and implemented as both of them used to authorise conciliators, complete powers to effect reconciliation or separation as required by the circumstances. In this behalf two instances are very prominent which are being quoted here-in-below:- "In the case of Aqil son of Abu Talib and his wife Fatima daughter of Utba Bin Rabia dispute between the spouses was brought in the Court of Hazrat Usman (Allah be pleased with him). He appointed as arbitrator Abn-a-Abbas (Allah be pleased with him) from the family of the husband and Muawiya (Allah be pleased with him) from the family of the wife and told them that they were authorised to cause separation between them, if required by circumstances. 2. Similarly Hazrat Ali (Allah be pleased with him) appointed arbitrators in such like case and conferred authority upon them for effecting reconciliation between the spouses or separate them." 8. It may be noticed that there had been a difference of opinion regarding the powers of the arbitrators because according to the "Hanfi" and "Shafi" school of thought arbitrators are not authorised to pass any final decree but they should take measures for re-conciliation which may be accpeted or rejected by the spouses, whereas according to "Hassan Basri" and some other Jurist the arbitrators are authorised to enforce re-conciliation but not separation, whereas Abn-a-Abbas, Saeed Bin Jnbair, Ibrahim Naqhi, Shaabi, Muhammad Bin Siran etc. were of the opinion that conciliators should have full authority to enforce their decision about reconciliation, or separation which ever they considered to he proper. 9. In the religion of Islam separation of spouses has been considered necessary only when marital relations have deteriorated between spouses to a degree to which a happy life had become impossible. At the same time no remedy is available for divorce on petty grounds because if the tendency of separation by divorce is encourged it would have direct reflection on the stability of the family life as well as on the Muslim society, as such in the Holy book at various places different checks have been provided to limit the exercise of the right of divorce. In this behalf it may be mentioned that Holy Prophet Muhammad (peace be pon him) has made it clear that Islam does not regard the act of separation between spouses as desirable. In this behalf Ibne Umar (Allah be pleased with him) reported that the rriessanger of Allah (peace be upon him) once stated "OF ALL THE LAWFUL THINGS, DIVORCE IS THE MOST DETESTABLE THING IN THE SIGHT OF ALLAH". Ori another occasion Holy Prophet (Peace be upon him) as has (been) reported by Abu Dawood had stated "CONTRACT MARRIAGE AND DO NOT GIVE DIVORCE FOR ALLAH DOES NOT APPROVE OF'PLEASURE SEEKING MALE AND FEMALES". So-much-so Holy Quran provides that if you dislike a woman you should do your utmost to keep your marriage intact with her. 10. Now if the provisions of pre-trial and post trial under the Act are examined 'keeping in view the above discussion conclusion can be drawn that the Family Judge in-fact acts as arbitrator and in exercising judicial powers to organize a compromise with a view to save matrimonial life from further deterioration and in the suit of dissolution of marriage a decree for restitution of conjugal ights has been awarded in the largest interest of spouses keeping in mind that act of the ! divorce has not been considered desirable by the religion, and it would not amount to having exercised authority without jurisdiction because such powers of I reconciliation or compromise have been conferred on a Family Judge keeping in ' view the Islamic History which has been reproduced hereinabove. 14. It was lastly contended by the Raja Rah Nawaz Advocate, that an application dated 18 April 1992, was also filed hy the Counsel tor the petitioner wherein she expressed her grievance regarding the settlement of the terms of compromise incorporated in the impugned order. Although copy of such application is available on record but it apperas that the same was not filed before the Court and subsequently with a view to have a ground for challenging the order this plea has been concocted, thus at this stage the application cannot be considered. 15. The Counsel for the petitioner had also shown his grievance about the 'issuance of her warrant of arrest by the Family Judge through concerned SHO Police for implementing the order dated 18.4.1992. The learned Counsel expressed P that due to such un-warranted act on the part of the respondent she has developed hatred, therefore, is not willing to join him, he as such prayed for declaring this (action of Family Court without lawful jurisdiction.Because the order of the Family Judge regarding the issuance of the warrant fof arrest has not been called in question in instant proceedings, therefore, this ourt s not empowered in suo moto jurisdiction to strike down an order which has not been challenged, but observation can be made that Family Judge had no P lawful authority to issue the warrants of the arrest at the instance of respondent and if such action has been initiated that should be dropped immediatley and if petitioner does not join the respondent she would be deprived of the intenance allowance etc. and if at-all coercive measures for implementing the order dated 18.4.1992, have to be adopted then in that case the movable or immovable I property belonging to her can be ordered to e attached. 16. Keeping in view the above facts and circumstances, irresistable conclusion is drawn that impugned order has been passed with lawful authority and jurisdiction I by the Family Judge. 17. Accordingly it is held that petition has no merits which is hereby dismissed leaving the parties to bear their own cost. MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 Quetta 53 PLJ 1993 Quetta 53 Present: munawar AHMAD MlRZA, CJ Mst. MUMTAZ BEGUM-Petitioner versus ALLAUDDIN and 2 others-Respondents Civil Revision No. 332 of 1992, dismissed on 9.3.1993 (i) Declaration— —Declaration that a portion of sale consideration having been adjusted from petitioner's Compensation Book, property vested in her-Suit for-Dismissal of-Challenge to-Evidence led by petitioner is either contradictory to claim in suit or is inadmissible—It has, therefore, no legal sanctity—Even her version does not indicate that payment was not returned through nstalments by late Nawab Din—Non-production of Hameed, only attesting witness, casts serious doubt about validity of alleged agreement-Held: Claim put forth by petitioner has not been satisfactorily substantiated. [Pp.54,55&56]A&B (ii) Limitation- —Declaration-Suit for-Whether suit was barred by limitation-Question of-- Admittedly property was transferred by Settlement Department, in favour of late Nawab Din in 1960-It is not disputed that ill date, Nawab Din alone is recorded as owner of house—Maximum period for declaratory suit was six years from accrual of cause of action—It was obligatory for petitioner to have disclosed as to how fter 28 years from transfer of house in favour of Nawab Din, and 21 years subsequent to Nawab Din's death, suit could lawfully be nstituted-Held: Suit filed by petitioner merited dismissal as rightly eld in impugned judgment-Petition dismissed. [Pp.56&57]C&D Mr. Mohsin Javed, Advocate for Petitioner. Respondents: In person. Date of hearing: 9.3.1993. judgment This petition is directed against judgments and decrees dated 29.4.1992 and 24.10.1992, passed by learned Civil Judge-Ill and Additional District Judge-Ill respectively. The dispute in this case relates to House No. 4-9/16 Jamiat Rai Road, Quetta. Originally it was an evacuee property which on payment of price through compensation book was obtained from settlement authorities by Nawab Din, deceased father of respondents. Permanent Transfer Deed of above-said house was thus issued in favour of late Nawab Din in year 1960. The petitioner who is wife of respondent No. 2 Munawaruddin filed a suit Tor declaration and permanent injunction asserting that late Nawab Din got adjusted sum of Rs. 1,307/- against portion of sale price of the house from her Compensation Book and executed agreement in May, 1960 undertaking to return said amount by way of twelve (12) equal instalments and on the failure to perform the obligation whose house shall be deemed her property. It is alleged that instalments have not (been) paid in accordance with terms of agreement dated 24th May, 1960 despite demands made to respondents being legal heirs of Nawab Din therefore, suit was filed. Respondent No. 1 (Allauddin) contested the proceedings and filed detailed written statement on 15.8.1988, refuting the claim in suit. Keeping in view pleadings,"trial court framed six issues and gave parties opportunity of leading evidence. Record discloses that petitioner apart from herself adduced five witnesses namely; (i) Muhammad Bashir, (ii) Shaukat Ali, (iii) Saleem Ahmad, (iv) Muhammad Nazir and (v) Javed Iqbal clerk of settlement department; to substantiate her claim whereas in rebuttal respondent No. 1 besides his own statement examined four witnesses namely; (i) Ghulam Hussain, (ii) Muhammad Yousaf, (iii) Abdul Latif and (iv) Muhammad Ibrahim. Respondent No.2 also got recorded his statement for himself and attorney of respondent No. 3. Petitioner's claim was not disputed by the said respondents. Learned Civil Judge-Ill by means of judgment dated 29.4.1992 decreed the suit. Respondent No. 1 feeling aggrieved had challenged said decree by way of appeal which came up before learned Additional District Judge-III, Quetta who eventually accepted it vide judgment and decree dated 24.10.1992 directing dismissal of suit. Present petition is directed against last mentioned judgment of learned Additional District Judge-III Quetta. Arguments were heard at length. Mr. Mohsin Javed learned counsel for petitioner emphatically urged that part payment of sale consideration concerning house in dispute was made from Compensation Book belonging to petitioner and deceased Nawab Din. In this connection an agreement was executed on the basis whereof she has acquired^ valid title over said property. It was contended that respondent Allauddin had denied her title concerning this house, therefore, on his final refusal proceedings were initiated. Whereas respondent expressed that house-in-dispute belonged to his father late Nawab Din, who left behind three sons (the respondents), therefore, he is entitled to l/3rd share. Suite has been maliciously filed to deprive him from same. I have carefully perused available record in the light of above submissions. This is an admitted feature that late Nawab Din had expired on 5th of February, 1967. Permanent Transfer Deed of the house in dispute was exclusively in the name of late Nawab Din. However, claim set up by petitioner suggests that a portion of sale consideration having been adjusted from her Compensation Book, was returnable by late Nawab Din in 12 instalments, therefore, in terms of agreement now said property vests in her. For proper appreciation of controversy it would be appropriate to have brief resume of evidence adduced by petitioner for supporting her claim. P.W. 1 Muhammad Bashir real brother of petitioner deposed that house-in-dispute was purchased jointly by petitioner and late Nawab Din and a sum of Rs. 1307/- out of said consideration had been paid by her. The witness admitted that he was not present at the time of purchase, payment or transaction indicating joint share. Evidently operative portion of this statement is hear-say, besides being contradictory to the stand in suit. Testimony of P.W.2 Salim Ahmad mentions purchase of house in dispute by petitioner. He admits that he was not present at the time of transaction and came to know about it from petitioner's son namely Javed. Version of this witness is totally hear-say and inadmissible. P.W.3 Shaukat Ali desposed that house in dispute was in occupation of petitioner. An agreement regarding purchase of house in dispute by petitioner and respondent No. 2 was executed within his presence on 24.5.1960. It was reduced into writing by petition writer Chanan Khan and Abdul Hameed was its only attesting witness. Evidently petitioner does not even allege purchase of house by respondent No. 2. Absolutely no agreement indicating purchase of premises jointly by petitioner and respondent No. 2 has been brought on record. Though according to him document was executed in his presence yet surprisingly he is not attesting witness. The deposition of this witness being contradictory, instead of helping the petitioner destroys her case and suffers from high improbabilities. P.W. 4 Muhammad Nazeer expressly mentioned that house was jointly purchased by late Nawab Din and petitioner. According to him a sum of Rs. 2016/- was paid by late Nawab Din and balance of Rs. 1037/- by petitioner. No document was executed in presence of this witness. It is pertinent to note that larger share of sale price of the house was paid by late Nawab Din from his own claim. It is matter of record that petitioner had executed document of association regarding her compensation book in favour of late Nawab Din. Therefore, no direct interest can be claimed by petitioner in the property on account of said adjustment. Next witness Javed Iqbal, Settlement Clerk, has produced documents on record. Petitioner in her statement has merely expressed that house in dispute was in her possession and a sum of Rs. 1307/- had been adjusted towards its price through her compensation book. According to her said amount was payable in 12 instalments. It was admitted by petitioner that Nawab Din had expired on 5.2.1967, and property till date is recorded in the name of Nawab Din. However, evidence led by respondent Allaudin shows that house was purchased from settlement department exclusively by late Nawab Din. It has also been brought in evidence that late Nawab Din died in year 1967 leaving behind three sons arrayed as respondents. Respondent has deposed that house exclusively belonged to his father, therefore, he was entitled to l/3rd share. He denied the correctness of agreement relied upon by appellant. It may be seen that evidence led by petitioner is either contradictory to the claim in suit or inadmissible. It therefore, has no legal sanctity. Even the version of petitioner does not indicate that the payment was not returned through instalments by late Nawab Din. Therefore, agreement relied upon has not been effectively proved through primary evidence. Nonproduction of Hameed, the only attesting witness casts serious doubt concerning validity of alleged agreement. Thorough scrutiny discloses that claim put forth by petitioner has not been satisfactorily substantiated.Most important factor relating to limitation for filing the suit can not be conveniently over-looked. Admittedly property was transferred by Settlement Department in favour of late Nawab Din during year 1960. The amount of compensation- book was essentially adjusted before transfer documents were issued in his favour by the Settlement Department. It is not disputed that till date Nawab Din alone is recorded owner of the house. The petitioner has not claimed specific performance of alleged agreement for which limitation prescribed by law was only three years from accrual of cause of action. Petitioner has opted to pursue remedy for declaration for which maximum benefit can be claimed from residuary Article 120 of Limitation Act, where maximum period available to petitioner was only six years from cause of action. Late Nawab Din had expired in year 1967 therefore, it was obligatory for the petitioner to have disclosed how after 28 years from the transfer of house in favour of Nawab Din and 21 years subsequent to his death suit could be lawfully instituted. When Mr. Mohsin Javed, learned counsel was asked to explain this position, he felt himself in great difficulty to justify such deep slumber and inordinate delay. Absolutely no explanation has been offered to justify this belated action. Surprisingly trial court has cursorily dealt with this aspect by observing that said point was not pressed, which is factually contrary to record. The Hon'ble Supreme Court in case Haji Muhammad Boota vs. Habib Ahmad (PLD 1985 S.C. 153) has authoritatively observed that even if point of limitation is not taken it was obligatory for the court to ensure that question of limitation is scrutinised because it deals with assumption of Jurisdiction to grant relief. Apparently no provision of law could justify institution of suit at such belated stage specially when there is no specific explanation for delay. However, it may also be observed that petitioner would at best claim share proportionate to her contribution to the sale price. The filing of suit claiming whole property was ex-fade incompetent. The appellate court has appropriately considered all the factors and arrived at correct conclusion on proper appreciation of whole record. After independent re-evaluation of evidence I am inclined to confirm said conclusion. It is well settled that when appellate court has assessed the evidence and based conclusion on cogent reasons, then finding of appellate forum must be given greater weight. In this view I am supported by the observation in PLD 1982 S.C. 465 and PLD 1986 SC(AJ&K) 65.From the above discussion I have no hesitation in holding that suit filed by petitioner merited dismissal as rightly held in the impugned judgment. Thus there is no substance in the petition, which is consequently dismissed. Parties arel however, left to bear their own costs. This petition was decided by short order of even dated and here are reasons tor the same. (MBC) Petition dismissed.

PLJ 1993 QUETTA 58 PLJ 1993 QUETTA 58 Present: IFTIKHAR MUHAMMAD CHAUDHRY, J Sardar IMAM BAKHSH and 3 others-Petitioners versus Mir YAR MUHAMMAD KHAN RIND and another-Respondents Civil Revision No. 254 of 1992, dismissed on 31.3.1993 (i) Appeal- —Suit under Section 9 of Specific Relief Act, 1877-Direction to deposit amount of share of petitioners' predecessor-in-interest-Appeal against- Whether order of civil court was appealable-Question of-A persusal of Section 9 of Specific Relief Act manifestly makes it clear that no appeal shall lie against any order or decree passed in suit instituted under that Section—It is to be seen as to whether order passed on application under Order XL Rule 1 of CPC can be considered as an order passed under Section 9 of Specific Relief Act—Any other order like an order on application un,der Order XL Rule 1 of CPC would not be termed as an order under Section 9 of Specific Relief Act-Held: As order under Order XL Rule 1 of CPC is not covered by prohibitory clause of Section 9, appeal was therefore, competent. [Pp.63&64]A,.B,C&D PLD 1964 (WP) Peshawar 157 and PLJ 1992 SC (AJK) 85 distinguished AIR 1937 Sind 161 rel. (ii) Civil Proceduure Code, 1908 (V of 1908)- —-O. XL R.I read with Specific Relief Act, 1877, Section 9-Suit for possession under Section 9 of Specific Relief Act—Order of deposit of share passed on application under Order XL, Rule 1 of CPC-Appeal against-Acceptance of appeal-Challenge to-For an order under O. XL R. 1 of CPC, it is essential for court-to examine whether title of plaintiff is valid and it is also just and convenient to appoint receiver or not-Also whether plaintiff has proved strong prima facie case in his favour and what are circumstances which warrant immediate appointment of receiver-Held: Trial court had absolutely ignored these principles while passing order under consideration and its order was not sustainable-Held further: Appellate court has thoroughly considered relevant aspects and formed opinion which is not open to exception—Petition dismissed. [P.64]E,G&G Mr. M.Riaz Ahmad, Advocate for Petitioners. M/s. Narian Dass D. Kapoor, and Muhammad Aslant Chishty, Advocates for Respondents. Date of hearing: 16.3.1993. JUDGMENT Petitioner had himself set up a claim in plaint regarding user of passage since 15/16 years. The matter remained under consideration before the subordinate forum for more than three years but during all this period, petitioner never sought amendment of plaint. There is no gain-saying the fact that evidence of plaintiff must correspond to claim set up in the plaint. Different stand or effort for improvement certainly tends to create reasonable doubt and effects quality of evidence and element of satisfaction essentially required in matters of Easement. Honourable Supreme Court in case Abdul Hamid Shah vs. Muhammad Yar (PLJ 1991 S.C. 485) has ruled that easement is a right possessed by an owner of property for the beneficial enjoyment appurtenant to a property owned by another person. Therefore, claimant must show that without enjoyment of such right, the property for the beneficial use whereof right exists, can not be availed at all. Mere inconvenience on the failure to enjoy such benefit is not sufficient to grant relief. In another case (i) Pakistan Warranted Warehouse Ltd. vs. M/s Sindh Industrial Trading Estates Ltd. and another (1991 S.C.M.R. 119), Honourable Supreme Court while explaining 'Easement of necessity' has deemed it a right without which property can not be effectively used. Mere reasonable or beneficial, enjoyment of property, did not furnish adequate test for creation of such right. It was observed that necessity had to be absolute and not only convenient mode of enjoying his property by availing the relief. In the instaiS case petitioner has clearly failed to justify the necessity of qualifying the tests laid in above referred judgments. Right of easement under Section 15 of the Easement Act, would accrue only when absolute, peaceful and open enjoyment for continuously more than 20 years has been convincingly established which aspect is clearly lacking in this case. Therefore, I have no hesitation in concluding that under given circumstances the claim of petitioner must fail.Additionally it may be seen that there is concurrent finding of fact wherein evidence has been exhaustively evaluated by both the forums below. Right of easement is obviously question of fact determinable on thorough analysis of evidence led by parties. Therefore scope of revisional jurisdiction would be limited and interference is not justified unless patent illegality, want of jurisdiction, mis-exer-cise of authority or material irregularity can be disclosed. In this view I am fortified by the observation in cases (i) 1991 SCMR-119 and (ii) 1991 MLD 1502. For the above reasons, I do not find any substance in the petition which is consequently dismissed. Parties are left to bear their own costs. (MBC) (Approved for reporting) Petition dismissed

PLJ 1993 Quetta 61 PLJ 1993 Quetta 61 Present TFTlKItAR MUHAMMAD CHAUDHRV, J Sardar IMAM BAKHSH and 3 others-Petitioners versus Mir YAR MUHAMMAD KHAN RIND and another-Respondents Civil Revision No. 254 of 1992, dismissed on 31.3.1993 (i) Appeal-- —Suit under Section 9 of Specific Relief Act, 1877-Direction to deposit amount of share of petitioners' predecessor-in-interest—Appeal against— Whether order of civil court was appealable—Question of—A persusal of Section 9 of Specific Relief Act manifestly makes it clear that no appeal shall lie against any order or decree passed in suit instituted under that Section—It is to be seen as to whether order passed on application under Order XL Rule 1 of CPC can be considered as an order passed under Section 9 of Specific Relief Act-Any other order like an order on application under Order XL Rule 1 of CPC would not be termed as an order under Section 9 of Specific Relief Act-Held: As order under Order XL Rule 1 of CPC is not covered by prohibitory clause of Section 9, appeal was therefore, competent. [Pp.63&64]A,.B,C&D PLD 1964 (WP) Peshawar 157 and PLJ 1992 SC (AJK) 85 distinguished. AIR 1937 Sind 161 rel. (ii) Civil Proceduure Code, 1908 (V of 1908)- —O. XL R.I read with Specific Relief Act, 1877, Section 9-Suit for possession under Section 9 of Specific Relief Act—Order of deposit of share passed on application under Order XL, Rule 1 of CPC-Appeal against-Acceptance of appeal-Challenge to~For an order under O. XL R. 1 of CPC, it is essential for court -to examine whether title of plaintiff is valid and it is also just and convenient to appoint receiver or not-Also whether plaintiff has proved strong prima facie case in his favour and what are circumstances which warrant immediate appointment of receiver-Held: Trial court had absolutely ignored these principles while passing order under consideration and its order was not sustainable-Held further: Appellate court has thoroughly considered relevant aspects and formed opinion which is not open to exception—Petition dismissed.[P.64]E,G&G Mr. M.Riaz Ahmad, Advocate for Petitioners. M/s. Nation Dass D. Kapoor, and Muhammad Aslam Chishty, Advocates for Respondents. Date of hearing: 16.3.1993. judgment Facts giving rise to the instant proceedings are that predecessor in interest of the petitioners i.e. late Sardar Taj Muhammad Rind, filed a suit under Section 9 of the Specific Relief Act, against the Respondents for restoration of the possession of "Nallah Abb known a Ganga" situated in Mouza Shooran, Sub Tehsil Sunni, District Kachi, alongwith suit an application under Order 40 Rule 1 R/W Section 151 CPC for the appointment of the receiver during pendency of the suit was also filed. The learned Court on receiving the written statement as well as reply of the application passed order on 26th November 1991, whereby Respondents were directed to deposit a sum of Rs.9,804/- towards the share of Sardar Taj Muhammad Rind. The aforesaid order was challenged in appeal by the Respondents which was dismissed on 18th December 1991, thereafter a Civil Revision being No.48/92, was filed before this Court which was disposed of vide order dated 1st April 1992, whereby the order under challenge was set-aside and case was sent back to the Appellate Court for the disposal of the appeal. 2. On remand of the case on account of the death of Sardar Taj Muhammad Rind, petitioners were impleaded as his legal heirs and Appellate Court set-aside the order of the trial Court dated 26th November 1991, as such instant proceedings. 3. Mr. Muhammad Riaz Ahmed appeared on behalf of petitioners and contended that appeal before the Appellate Court was not competent in view of the bar created by Section 9 of the Specific Relief Act. The order of the Qazi dated 26th November 1991, was not amenable as it was passed with lawful authority and jurisdiction. 3-A. M/s. Muhammad Aslam Chishti and Narian Das D. Kapoor Advocates, argued on behalf of the Respondents that the trial Court had passed order dated 26th November 991, on an application under Order 40 Rule 1 CPC, therefore, it was challengeable before the next higher Court. In the Civil Revision No.48/92 the case was remanded by this ourt with the consent of parties and the predecessor in interest of the Petitioners was very much aware about the legal position and he had consented for the remand of the case. As such, the petitioners are estopped to challenge the jurisdiction of the Appellate Court. The order of depositing share of petitioners was passed by the trial Court without strictly adhering to the provision of Order 40 Rule 1 CPC. 4. The moot question requiring consideration in the instant case relates to the maintainability of the appeal against the order of the trial Court, therefore, it would be expedient to reproduce here-in-below Section 9 of the Specific Relief Act. 9. Suit by person dispossessed of immovable property. If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit. Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession. No suit under this section shall be brought against the Central Government, or any Provincial Government. No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed". A perusal of above provision manifestly makes it clear that no appeal shall lie from any order or decree passed in suit instituted under the aforequoted section. It may be noted that light to file a suit for restoration of the possession has been conferred upon an aggrieved person notwithstanding the fact whether he has legal title in his favour to remain in the possession of the property or not? The Court while discharging function is bound to exercise jurisdiction within the four corners of Section 9 of the Specific Relief Act. 5. It is to be seen that as far as order passed on an application under Order 40 Rule 1 CPC, or any other provision of the law other than Section 9 of the Specific Relief Act, can be considered to passing of an order under Section 9 of the Specific Relief Act. The provisions of the law reproduced here-in-above, specifically mentioned that any order or decree passed in suit shall not be appealable and the aggrieved party would have a right to file a suit challenging that decree on the basis of the title in the property if he has so. It would mean that any order on the suit, instituted on a plaint under Section 9 Specific Relief Act would not be appealable. Mr. Muhammad Riaz Ahmed in support of his contention referred to Muhammad Omar Khan v. Muhammad Asif and others PLD 1964, West Pakistan Peshawar, 157, Mst. Jhali and others v. Lai Khan and another, PLJ 1992, Supreme Court (AJK) 85. As far as principles laid down in these reported judgments are concerned I respectfully endorse the same but in the case in hand the question is slightly different. It is to be observed that the Court while exercising jurisdiction under Section 9 of Specific Relief Act, is supposed to dispose of the matter on the basis of the pleadings of parties. As far as passing of any other order like on an application under Order 40 Rule 1, CPC, is concerned that would not be termed as an order passed under Section 9 of the Specific Relief Act. In this behalf it is further added that if any such order on miscellaneous application is passed that would be deemed as an order beyond the purview of Section 9 of the SpecificRelief Act. To substantiate the legal position I may refer AIR 1937, Sind 161, relevant para for reference is reproduced below:--"The last paragraph of Section 9 would appear in explicit terms to forbid an appeal against an order or decree passed in a suit instituted under this section. It is, however, argued before us that this bar cannot relate to an order passed without jurisdiction, and that as this order is passed under Order 40, Rule 1, Civil P.C., which is an appealable order under Order 43, Civil P.C".. Because the order under Order 40 Rule 1 CPC is not covered within the prohibitory clause of Section 9 of the Specific Relief Act, therefore, I am inclined to hold that the appeal was competent before the Appellate Court / Majlise-e- Shoora. 6. So for the merits of the case are concerned whereby the Respondent have been directed to deposit Rs.9804/- towards the share of produce of the petitioners' predecessor in interest, it is to be seen that under Order 40 Rule 1 CPC, it is essential for the Court to examine whether the title of the plaintiffs/applicants is valid and it is also just and convenient to appoint receiver or not? Whether plaintiff has proved strong prima facie case in his favour to the effect that ultimately he would succeed in getting relief as prayed for, coupled with the fact that what are those circumstances which warrant for immediate appointment of the receiver. In my view the learned trial Court had absolutely ignored these principles while passing the order under consideration. Even otherwise the nature of the order indicates that the Court while disposing of application was not competent to pass such type of order, therefore, on this score as well the order dated 26.11.1991, was not sustainable. The Majlis-e-Shoora has thoroughly considered all the relevant aspects of the case and formed the opinion which is not open to any exception in the revisional jurisdiction. For the foregoing reasons I see no force in the petition which is dismissed leaving the parties to bear their own costs. (MBC) Approved for reporting) Petition dismissed.

PLJ 1993 Quetta 70 PLJ 1993 Quetta 70 Present: amirul mulk mengal, J ZUBEDA BAI-Appellant versus SYED FAQIR SHAH-Respondent F.A.O. No. 10 of 1993, dismissed on 11.5.1993. Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)-- —-S. 2(0--Tenant-Ejectment of--Refusal of--Challenge to-Whether plot originally let out to respondent was a rented land-Question of-Bare perusal of Section 2(f) reveals that if any land is let eparately for purpose of being used mainly or chiefly for business or trade, then it is covered by definition of a "rented land"-There is no mention in plaint that open plot was let out principally for pose of business or trade-According to respondent, it was given to him in 1950 to be used for any purpose he liked-Held: Controller had no jurisdiction and he rightly concluded that it was not a rented and-Appeal dismissed. Pp.72,73&74] A,B,C,D&E PLJ 1973 SC 14 and PLD 1969 Lahore 12 distinugished. PLD 1973 Qta 28 rel. Mr. K.N. Kohli, Advocate for Appellant. Mr. AH Ahmed Kurd, Advocate for Respondent. Date of hearing: 9.5.1993. judgment This appeal filed under Section 15 of Baluchistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter referred to as the "Ordinance") is directed against judgment dated 30.12.1992 passed by learned Civil Judge-cum-Controller, Quetta whereby he was pleased to dismiss the eviction application filed by appellant. 2, Relevant facts for filing of this appeal are that the appellant is landlady and owner of a plot bearing Municipal No.l-13/16-A situated on Bohra Street Quetta, The said plot was leased out to respondent originally in the year 1950 at he monthly rent of Rs.50/- which ultimately was enhanced gradually upto Rs.1200/- per month. Eviction application was moved on the ground that the landlady wanted demolition and reconstruction as she had already obtained approved plan from the Municipal Corporation, Quetta for the said purpose. However respondent contested the same by filing written statement. 3. On the basis of the pleadings the learned Controller framed the following issues:- 1. Whether the premises in dispute 'is rented land, if so to what effect? 2. Whether the premises in dispute is required by the applicant reasonably and in good faith for demolition and reconstruction? 3. Relief? 4. In support of eviction application landlady examined AW 1 Shaukat Hussain, AW Muhammad Anwar Patwari and her attorney Zohaib Ali. In rebuttal the respondent examined RW 1 Khalil-ur-Rehman, RW-2 Zafar Iqbal Qureshi, RW 3 Agha Muhammad Hussain, RW 4 Abdul Samad and got his own statement recorded. 5. Learned Controller dismissed the eviction application. Hence this appeal. 6. Heard Mr. K.N. Kohli, Advocate for appellant and .Mr. Aziz Ahmad Kurd, Advocate for respondent. 7. The main ground urged by Mr. Kohli was that the premises was a 'rented land' and the respondent has constructed a composite building on the same. He further argued that being 'rented land' he Controller had the jurisdiction but learned Controller in mis-exercise of his jurisdiction rejected the application. 8. Learned counsel further emphasised that landlady had obtaind an approved plan as back as in the year 1985 and got the same renewed therefore the Controller erred in law in holding that since the period for which this plan was approved ended after 7 years, therefore, very basis of the eviction application no more existed. 9. On the contrary Mr. Ali Ahmad Kurd argued that premises was not a 'rented land'. While referring to the written statement learned counsel submitted that when it was specifically denied that the premises was not a rented land the onus shifted on the landlord/landlady to prove that it was a rented land. There is not an iota of evidence produced by the landlady that the premises was a rented land, therefore, the learned Controller correctly decided the matter by dismissing the eviction application. 10. Besides the arguments, I have gone through the record and perused the impugned order. 11. The moot question which cuts at the root of the matter is whether or not the plot originally let out to the respondent was a 'rented land' as defined under Section 2(/) of the Ordinance. Section 2(/) reads as under:- "(/) 'rented land' means any land let separately for the purpose of being used principally for business or trade;" Bare perusal of Section 2(/) reveals that if any land is let separately for the purpose of being used mainly or chiefly for business or trade then it is covered by the definition of a 'rented land'. The legislature intentionally used the word 'separately' which means that if a piece of land is let out distinctly for the purpose of being used for business or trade then such land is included in the definition. Another important word used is "principally" which means chiefly or mainly, hence the chief purpose of the plot which is let out for rent must be business or trade. 12. Seen in the light of aforementioned definition, if we take into consideration the facts of the present case we find that there was an open plot where the people used to throw garbages and the landlady rented out the same to the respondent to be used by him for any purpose he liked. The respondent thus got the occupation of the said open plot and started constructing two residential rooms and one garrage. Thereafter with the passage of time he constructed a service station etc. When the open plot was leased out monthly rent was Rs.50/-. 13. Mr. K.N. Kohli urged with considerable vehemence that after getting possession of the plot a garrage and two residential rooms were constructed and in the garrage respondent used to repair vehicles which was a commercial purpose, therefore, the plot was a 'rented land'. In support of his contention learned counsel went on to say that in para 1 of the written statement the respondent stated that 35 years ago late Sadiq Ali let out an open plot to the respondent at a monthly rent of Rs.50/- for residential/business purpose and with his consent respondent raised superstructure. Thus it was argued that it amounts to admission that the plot was let out for commercial purposes. Learned counsel to further supplement his arguments referred to the case of Shaukat Ali alias Shoka v. Sh. Abdul Hamid (PLD 1969 Lahore 12) and Noor Muhammad Khan v. Haji Muhammad Ali Khan (PLJ 1973 S.C. 14). 14.1 have perused the aforementioned to judgments and found that the facts are quite distinguishable. In the Lahore judgment (ibid) the plot was an open piece of land transferred under Displaced Persons (Compensation and Rehabilitation) Act, 1958 used by occupant for tethering cattle and running a fuel-wood business, therefore, it was held that it was a 'rented land' and provisions of Ordinance attracted. Similarly in 1973 S.C. as referred to hereinabove originally a building was leased out as a vacant plot of land alongwith 5 1/2 shops for purpose of construction of a cinema house and it was held that in the circumstances the same was covered by definition of "building". 15. But in the instant case there was an open plot where people used to throw garbages and land owner wanted its protection, therefore, he rented out the same to the respondent to be used for any purpose he liked. The facts, therefore, are quite distinct and distinguishable. Therefore the aforementioned authorities are of no benefit to the appellant. 16. In order to reach a conclusion whether the plot was let out separately for the purpose of trade and business, I perused the eviction application filed before the Rent Controller. In para 1 there is ention at all that the open plot was let out principally for the purpose of business or trade. In the second para of the eviction application it is written that the respondent is running service station and garrage in the premises. This was all what was written in the eviction application. In legal objection 'A' the respondent clearly stated that the plot in dispute was not let out to the respondent for business purpose and the portion of the said plot is used for residential purpose, therefore, the plot in dispute is not a 'rented land' and Rent Controller had no jurisdiction to adjudicate upon it. I thereafter perused the statement of attorney of landlady who entered the witness box in support of the eviction application. He has not mentioned a single word in support of the contention that it was an open plot which was let out for the purpose of business or trade. However, he mentioned only that on the open plot there is a garrage. Thus the case of the appellant was not that it was an open plot which was let out for the purpose of business or trade. 17. When Mr. Kohli was confronted with this situation, he referred to the statement and evidence of the respondent and stated that the respondent has produced evidence that there was a garrage and subsequently a service station was installed. 18. The question for determination giving ju isdiction to Rent Controller was whether at the time when it was let out the same was leased out for the purpose of unning a business or trade or not? The respondent stated that the plot was given to him in the year 1950 to be used for any purpose he liked whether residential or business etc. He constructed two residential rooms and a garrage. Thus neither the landlady has stated anything in the eviction application nor produced a single witness to say that it was an open plot separately let out for the purpose of being used principally for business or trade, so much so that after a specific objection raised in the written statement she came to know the plea taken by the respondent but still her attorney did not utter a single word to that effect. The emaining two witnesses have only deposed regarding the approved plan for demolition and construction. Thus there was no evidence on record to conclude that the plot was a rented land. Hence the earned Controller had no jurisdiction and he rightly concluded that it was not a 'rented land'. In this view of the matter the case of Muhammad Khan and others v. Mst. Alamtab and others as reported in PLD 1973 Quetta 28 is of much help where it was held that the land not let out chiefly or mainly for the purpose of business or trade is not a 'rented land'. In the said case the Ind was let out to be used in any form or manner. So also in the present case the landlord leased out the same to be used for any purpose by the respondent. Subsequent developments are to my calculated view totally irrelevant ecause it is t the time of letting out the open plot which must be taken into consideration to determine whether the said plot was let out principally for the purpose of business or trade or not. 19. Having held so the remaining arguments regarding demolition and reconstruction etc. become irrelevant and require no determination, 20. The upshot of above discussion is that appellant totally failed to bring any evidence on record that the open plot was a 'rented land', therefore, I see no force in this appeal which is dismissed ith no order as to costs. 21. These are the reasons for the short order announced on 9.5.1993 in open Court. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC (AJK) 1 [Appellate Jurisdiction] PLJ 1993 SC (AJK) 1 [Appellate Jurisdiction] Present: SARDAR said muhammad khan, CJ. and basharat ahmad shaikh,!. MUHAMMAD LATIF KHAN-Appellant versus ALIUL HUSSAIN BUKHARI and 41 others-Responents Civil Appeal No. 2 of 1992, dismissed on 6.10.1992 [On appeal from judgment of High Court, dated 5.12.1991, in W.P. No. 83 of 1991.] (i) Civil Servants Act, 1973- f —S. 9 read with Civil Servants (Appointment and Conditions of Service) Rules,rule 3--Appellant's appointment as Incharge, Muzaffarabad Division of Forest Department-Writ petition against-Acceptance of~Challenge to-Appellant belongs to prosecution branch in grade 17 and not Assistant Conservator of Forest-Fact that he is shown as one of Assistant Conservator of Forest subsequently in seniority list, does not make any substantial difference- Per&ual of Rule 3 of Civil Servants (Appointment and Conditions of Service) Rules, shows that initial appointment of Assistant Conservator of Forest can only be made of a person who fulfills requisite qualifications-Held: Since appellant was not graduate in natural sciences, his appointmnt as incharge of Forest Division was not legally sustainable-Held further: However, direction of High Court that "person holding office at time of issuance of impugned order, is allowed to occupy office forthwith," does not fall within four corners of a writ of quo wara/Uo-Appeal dismissed but portion of impugned order vacated. [Pp.8,9,10&ll]B,C,D,E,F&G PLJ 1991 SC(AJK) 20 and 1981 CLC 839 rel. (ii) Quo Warranto-- —Appellant's posting as Incharge Muzaffarabad Division of Forest Department-Writ petition against-Acceptance of-Challenge to~Whether jurisdiction of High Court was barred in view of Section 4 of Service Tribunals Act-Question of-Writ petition filed before High Court, was not in respect of terms and codilions of respondents, but was writ of quo uwra/Jto-Scope of appeal under Section 4 of Service Tribunals Act, is vastly distinct and different from writ of quo warranto--A writ of quo warranto is sought to get a public office vacated if it is proved that it is illegally occupied or usurped—Held: Jurisdiction of High Court can only be ousted in view of Section 4 of Service Tribunals Act, if matter relates to terms and conditions of service. [Pp.4&5]A PLD 1974 Lahore 545, PLD 1976 AJ&K 1, PLD 1976 Quetta 59, PLD Pesh. 81, PLD 1981 Kar. 290, PLD 1985 SC 82, PLD 1987 Lahore 256,1986 PLC 788, PLD 1991 SC(AJ&K) 37, PLD 1980 SC(AJ&K) 5 and 1985 SCMR 63 discussed. Raja Muhammad Akram Klian, Advocate for Appellant. Kit. Shahad Ahmad, Advocate for Respondent 1 to 40. Mr. Sardar KJian, Advocate General for Respondent No. 41. Date of hearing: 4.7.1992. judgment Busharut Ahmad Shaikh, J.--The appellant herein, Muhammad Latif Khan, was transferred and posted as Incharge Muzaffarabad Division of the Forest Department in place of respondent Aliul Hussain Bukhari, a Deputy Conservator of Forests who was transferred to another division. The order was issued by the Government on 31st of October 1991. The order was challenged by 18 Deputy Conservators of Forests and 22 Assistant Conservators of Forests on the ground that the appellant was not qualified to hold the post to which he had been transferred by virtue of the aforesaid order of the Government. The writ petition has been accepted by a learned Judge in the High Court and it had been ordered that Muhammad Latif Khan shall cease to hold the office mentioned above. He was also restrained from discharging the functions and duties of the aforesaid office. In reaching the conclusion as aforesaid the High Court overruled the objection raised on behalf of the present appellant that the said Court had no jurisdiction to hear the case because the subject matter of the writ petition fell within the purview of the Service Tribunal as being relatable to the terms and conditions of srvice. The appellant seeks the annulment of the judgment of the High Court. The appellant does not hold any degree n Natural Sciences which is the normal requirement for appointment as a Forest Officer, although he holds the degrees of LL.M., MA. (Journalism), M.A. (Islamic Studies) and MA. (Political Science). Before being ppointed as Incharge of Muzaffarabad Forest Division by virtue of order under challenge before the High Court the appellant was looking after the functions of prosecuting forest cases in different Courts at Bagh. The exact position held by the appellant is the subject of serious dispute between the parties and the result of appeal depends on this finding. Therefore, we would advert to this part of the dispute at the proper place but it ay e noticed at this stage that the Government order under reference itself refers to appellant Muhammad Latif Khan as ' ' B-17. The Government Order may be reproduced below:-- As already noted the appellant unsuccessfully contended before the High Court that the subject matter of the writ petition was within the jurisdiction of the Service Tribunal and, therefore, the jurisdiction of the High Court stood completely ousted. This objection has been raised with great vehemence before us by Mr. Muhammad Akram Khan, the learned counsel who appeared before us on behalf of the appellant. According to Section 47 of the Azad Jammu and Kashmir Interim Constitution Act no other Court can entertain any proceeding in respect of any matter to which the jurisdiction of the Service Tribunal extends. It is undisputed that this bar is fully applicable to the High Court even when it is acting under its constitutional jurisdiction under Section 44 of the Interim Constitution Act. However, the question before us is whether the subject matter of the writ petition fell within the jurisdiction conferred on the Service Tribunal. In order to resolve this controversy we may advert to the relief claimed in the writ petition. The portion of the writ petition relating to relief runs as follows:-- "In view of the above stated facts, it is humbly prayed that a writ of quo wairanto may kindly be issued to non-petitioners 1 and 2 to show under what authority of law they have appointed non-petitioner No. 3 as Divisional Forest Officer, Muazaffarabad and similarly a writ be issued against non-petitioner No. 3 to show under what authority of law he holds the post of Divisional Forest Officer. It is also prayed that a necessary writ may kindly be issued to protect entry of non-technical persons in regular services of Forest Department and the impugned order Annexure 'D' be set aside by declaring it as illegal. It is further prayed that any other relief to which the petitioners are found entitled to, may also be granted." From the foregoing extract it is clear that the writ petition which had been . filed by the forty. Forest Officers, who are respondents before us, was one of quo warranto and did not relate to any violation of the termsand conditions of the petitioners. While deciding this point the learned Judge in the High Court observed that under Section 4 of the Service Tribunals Act an appeal can be filed by a civil servant against the final order in respect of any of the terms and conditions of his service and that the petitioners in the present case did not challenge the order under reference on the ground that their terms and conditions of service had been violated by it. We find force in this observation. The scope of an appeal before the Service Tribunal is vastly distinct and different from the application for a writ of quo watranto envisaged by Section 44 of the Interim Constitution Act. In an appeal under Section 4 of the Service Tribunals Act if a civil servant is aggrieved by a final order passed by a departmental authority he can file an appeal before the Service Tribunal, but the overriding condition is that jit should relate to any of the terms and conditions of that civil servant. It is implicit in an appeal before the Service Tribunal that the appellant has to seek a relief for himself. On the other hand a writ of quo warranto can be filed by any person without being aggrieved of any order. A writ of quo warranto is sought to get a public office vacated if it can be proved before the High Court that it was being illegally occupied or usurped. During the elaborate arguments on this point Mr. Muhammad Akram Khan did not contend that the enactment of Section 4 of the Service Tribunals Act has the effect of abrogating the powers of the High Court to issue a writ of quo warranto as long as Section 4 is in force. We may observe that Section 47 of the Interim Constitution Act does have the effect that as long as Section 4 is in existence the powers under section 44 cannot be exercised by the High Court but this is subject to the conditions that matter must relate to terms and conditions of the service of a civil servant who is an appellant before the Service Tribunal and seeks annulment of an order adversely effecting his service rights. The host of authorities cited by Mr. M. Akram Khan in support of his contention lay down the same proposition but do not lay down that the power of issuing a writ of quo warranto is not available to the High Court if the appointment of a civil servant is challenged. Mr. Muhammad Akram cited the following cases: Muhammad Aslam Bajwa vs. Federation of Pakistan (PLD 1974 Lah. 545). In this judgment a Division Bench of Lahore High Court held that on the coming into force of the Service Tribunals Act the writ petitions pertaining to the terms and conditions of service and concerned with the disciplinary action stood abated. In Mir Saddar Din vs. Government of AJ&K (PLD 1976 AJ&K 1), two learned Judges of the High Court dismissed a writ petition filed to challenge the retirement of a large number of civil servants on the ground that the 'matter related to the terms and conditions of service and after the establishment of the Service Tribunal the High Court had no jurisdiction to entertain a writ petition on that subject.In Muhammad Hashim KJian vs. Tlie Province of Baluchistan '(PLD 1976 Quetta 59), a large number of civil servants who had been dismissed or removed from service filed writ petitions to challenge the orders passed against them. The petitions were dismissed after holding that the Service Tribunal had the exclusive jurisdiction in disciplinary matters of civil servants. Dr. Raja Manzoor Elahi vs. North-West Frontier Province (PLD 1980 Pesh. 81). A writ petition was filed to challenge the retirement order of the civil servant on various grounds. It was held that the order was appealable to the Service Tribunal and the jurisdiction of all other courts was barred. The writ petition was dismissed. In Abdul Ban vs. Government of Pakistan (PLD 1981 Kar. 290), persons who had been retired from service filed writ petitions to challenge the adverse orders.The question whether the petitions could be heard by the High Court was referred to a Full Bench consisting of five Judges. After exhaustive study of case law the learned Judges Unanimously held that the petitions which sought to challenge of retirement were barred under Article 212 of the Constitution of Pakistan. Collector Central Excise vs. Aslam All thah (PLD 1985 S.C. 82). Aslam Ali Shah, an Inspector in the Excise Department, was charge sheeted. He requested for permission to be represented by a counsel which was declined. He filed a writ petition before the Lahore High Court. The High Court accepted the writ petition and held that the concerned civil servant was entitled to be represented by a counsel in disciplinary proceedings against him. This order was set aside by the Supreme Court on the short ground that the direction given by the High Court fell within the purview of the terms and conditions of service and, therefore, the High Court had no jurisdiction to entertain the question raised before it. Begum IsmatAzhar vs. Punjab Government (PLD 1987 Lah. 256). In this case it was held that posting and transfer is a necessary condition of service and was, therefore, outside the scope of constitutional jurisdiction of the High Court. Muhammad Ahmad vs. Pakistan (1986 P.L.C. 788). In the Accountant General's Office a new cadre described as Inter-Departmental Cadre was created which adversely affected the service rights of one Muhammad Ahmad who Hied a writ petition in the High Court. The petition was dismissed on the ground that the relief claimed by the petitioner related to the terms and conditions over which the Service Tribunal had exclusive jurisdiction. Azad Government vs. Zaman Alt Shall (PLJ 1991 S.C. (AJ&K) 37), the Azad Jammu and Kashmir High Court passed an order quashing the posting and transfer of certain Police Officers. On appeal this Court set aside the order holding that posting and transfer formed part of conditions of service and the matter related to the exclusive jurisdiction of the Service Tribunal. Ghiasul Haq vs. Azad Government (PLD 1980 S.C. (AJ&K) 5). This is leading judgment of this Court dealing with the respective jurisdictions of the High Court and the Service Tribunal. This judgment is authority for the view that the jurisdiction of the High Court is totally ousted in respect of those matters which fall within the domain of a Service Tribunal. Muhammad Sadiq Kliokhar vs. Engineer-in-Chief Pakistan Army, G.H.Q. (1985 S.C.M.R. 63). In this case it was held by the Supreme Court of Pakistan that if the suspension of a civil servant is ordered the order attains finality when it takes effect and is a final order appealable to the Service Tribunal. Consequently the High Court had no jurisdiction to entertain a writ petition to challenge a suspension order. Coming to the merits of the case we my point out that the appellant was in the Forest Department in some different capacity when he was approved by the Public Service Commission for appointment as Sub-Divisional Forest Officer (Prosecution) somewhere towards the end of the year 1979. The relevant Government Order issued on 2.1.1980 runs as follows: - Although it is established that the appellant was already serving in the Forest Department but since his appointment as Sub-Divisional Forest Officer (Prosecution) was made on the recommendation of Public Service Commission, it follows that it was against a post reserved for direct recruitment because in the year 1979 'the Public Service Commission did not deal with the cases of promotion nor indeed the order reproduced above recites that it was an order of promotion. The post against which the appellant was appointed is described as Sub-Divisional Forest Officer (Prosecution). In 1984 the Azad Jammu and Kashmir Forest Department Service Rules 1984 were framed by the Government in exercise of the powers under Section 23 of the Azad Jammu and Kashmir Civil Servants Act 1976. It repealed five sets of rules which were in existence immediately before the commencement of the aforesaid Rules in relation to the service matters of the forest department. In accordance with these Rules, hereinafter referred to as the Rules of 1984, a person can hold the post of Deputy Conservator of Forest B-18 if he is promoted "on the basis of" merit-cum-seniority and fitness" from amongst the Assistant Conservators of Forest with 7 years service in the Department. It is also provided therein that only that person can become Assistant Conservator of Forests who is graduate second class in natural sciences with two years successful training from Pakistan Forest Institute Peshawar or if he holds M.Sc. Degree in Forestory. It is vehemently contended by the appellant's learned counsel that the rules framed in 1984 were not applicable to the persons who were already holding posts in Forest Department. This proposition was not seriously contested by Kh. Shahd Ahmad, the learned counsel for the respondent Forest Officers, although he forcefully contended that if a person is to be transferred to hold any of the posts mentioned in the Rules of 1984 then he must be qualified to hold the post. He also contended that this principle was fully applicable even to posting orders for temporary period. Oy the appetfanc rcftance in support of fts case K pte/Cflrule 5 of Rules of 1984 and a seniority list which has been placed on the file b combined and redesignated as Asssitant Conservator of Forest." The appellant, if existence and by virtue of rule 5 he became an Assistant Conservator of Forest. According to the ppellant it is in consequence of rule 5 mentioned above in the seniority list subsequently prepared by the Chief Conservator of Forest the appellant was shown as one of Assistant Conservators of Forest B- 7 along with other Assistant Conservators of Forest including those who were petitioners

before the High Court. A perusal of the aforementioned seniority list shows that the appellant's name is shown at serial No. 23 amongst the Assistant Conservators of Forest B-17. After considering the arguments advanced at the bar we are of the view that the argument is without substance. It is correct that under rule 5 of the Rules of 1984 the posts of Sub-Divisional Forest Officers were re-designated as Assistant Conservators of Forest, but in his order of appointment the appellant had not jjj. been appointed simply as Sub-Divisional Forest Officer but his designation was shown as Sub-Divisional Forest Officer (Prosecution) and this is the post for which he had been approved by the Public Service Commission. It follows that the appellant was appointed to conduct Court cases on behalf of the Forest Department. It is not the appellant's case that he was performing any other function in the Forest Department at any time after his appointment as Sub- Divisional Forest Officer (Prosecution). The Rules of 1984 did not in any way change the nature of appellant's appointment. The re-designation incorporated in rule 5 mentioned above can only be interpreted to mean that in future the post of Sub-Divisional Forest Officer (Prosecution) would be re-designated as Assistant Conservator of Forests (Prosecution). We may also point out that in another context the appellant himself brought on record a Government Order issued on 27.6.1989 which was to the effect that M/S Muhammad Shafi and Muhammad Youns Foresters were, after being approved by the Selection Board, promoted as Terokar-e-Janglat' in B-16. One of the conditions attached to those promotions was in the following words:-- "The employees would not in future be eligible for promotion in any olher cadre of the Forest Department except the prosecution branch."This Government Order clearly demarcates prosecution branch as distinct from other caders of the Forest Department. That the appellant belongs to the prosecution branch is evident from his appointment order dated 31st October 1991, which has already been noted. We have already reproduced the order by which the appellant was transferred as Ineharge Muzaffarabad Division and we have noticed that it describes the appellant as 'Perokar-e-Janglat' B-17 Incharge (Prosecution) and not as Assistant Conservator of Forest which gives support to the conclusion to which we have reached. That being the position the mere fact that in the seniority list drawn up subsequently the appellant was shown as one of the Assistant Conservators of Forest does not make any substantial difference. The list was drawn up by the Chief Conservator of Forests who thought that being an Assistant Conservator of Forest the appellant's name should be inlcuded in the seniority list of A.C.Fs. It did not bring about a change in the nature of appointment of the appellant. We, therefore, hold that after coming into force the Rules of 1984 the appointment held by the appellant stood re-designated as Assistant Conservator of Forest (Prosecution) and that no other change was effected thereby. With that we pass on to the question whether the Government is authorised under Section 9 of the Civil Servants Act to transfer the appellant as Incharge of the Forest Division, a post which was previously held by a Deputy Conservator of Forest. Reliance was vehemently placed on Section 9 of the civil Servants Act because of the phraseology used in the Government Order of 31st October that Mr. Muhammad Lalif Khan's posting as Incharge Muzaffarabad Division was only temporary. Section 9 of the Civil Servants Act reads as follows:-- "9. Posting and Transfers.- Every civil servant shall be liable to serve anywhere within or outside Azad Jammu and Kashmir in 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 entitled if he had been so required to serve." The phraseology employed by the legislature highlights the liability of civil servants to serve anywhere within or outside of Azad Jammu and Kashmir, but this liability also implies the corresponding authority to enforce this provision. The question is whether this authority is unfettered and this implied authority overrides all other provisions of law applicable to civil servants. Section 9 itself does not say so. On the contrary it is laid down in Section 4 of the Civil Servants Act that the appointments to the civil service or civil posts shall be made in prescribed manner. The manner is laid down in rule 3 of the Civil Servants (Appointment and Conditions of Service) Rules. Rule 3 is worded as follows:-- "3. (1) Appointment to posts shall be made by promotion, transfer or initial recruitment, as may be prescribed by the Government in relation to the posts in a grade from time to time. " (2) Appointments by promotion or transfer shall be made in accordance with part II and by initial recruitment in accordance with Part III of these rules. (3) The appointment shall be made from among such persons possessing such qualifications and fulfilling such other conditions as may be prescribed by the Government." A perusal of sub-rule (1) shows that which osts have to be filled up by promotion, transfer or initial recruitment has to be prescribed. The.appointments by promotion or transfer have to be made in accordance with Chapter II as is laid down by sub-rule (2) bove. It is specifically laid down in sub-rule (3) that the I appointment can only be made of a person who fulfills the laid down qualifications and other conditions. It follows that if an Assistant Conservator Forests (Prosecution) has to be appointed as Assistant Conservator of Forests by transfer he must fulfil the requisite qualification, namely, that he should be at least a " graduate second class in natural sciences with 2 years successful training from Pakistan Institute Peshawar. In the written statement filed by the Government and the Secretary Forests they took the position that a person who is an Assistant Conservator of Forests can be appointed as Divisional Forest Officer. Since the appellant has not been found to be an Assistant Conservator of Forests in the general cadre it is clear that his appointment as -Incharge of the Forest Division was not legally sustainable. The conclusion drawn by the High Court is, therefore, unexceptionable. The Lahore High Court also expressed the same view in Syed Sarwar Hussain v. Punjab University (1981 CLC 839) cited by Kh. Shahad Ahmad, the learned counsel for the respondent Forest Officers. The facts were that Sarwar Hussain was a Deputy Registrar of the Punjab University and he was sent on deputation in the Punjab Education Department where he was posted as Principal of a College. He challenged the order on the ground that he could not be forced ~ to join as Principal of the College because he did not fulfil the necessary qualification for that post. It was held that although a civil servant could be transferred to any post but he could only be posted to work against a post for which he was -duly qualified. Another argument advanced by the learned counsel for the appellant was that the Divisional Forest Officer is not a statutory office and, therefore, quo warranto does not lie. Leaving aside the legal aspect of the argument it is not correct to say that Divisional Forest Officer is not a statutory post. A perusal of Jammu and Kashmir Forest Act 1930 (commonly misdescribed as Regulation) shows that certain statutory functions have been assigned by the aforesaid law to the Divisional Forest Officer and certain powers have also been invested in the incumbents of that office. For instance Section 6 authorises the Divisional Forest Officer to impose a collective compensation for loss caused to a forest and it places a duty on the persons residing in the concerned locality to pay the same. The same section authorises the Divisional Forest Officer to order the ejectment of a person who is found by him to have encroached upon any forest land and when .such an order is passed by Divisional Forest Officer every officer of the Police is bound to assist him. We, therefore, find no substance in the appeal but our attention has been drawn to part of the order passed by the High Court which needs to be attended to. Alter declaring that post held by Muhammad Latif Khan, appellant herein, I shall stand vacated, the High Court also proceeded to order as follows:- " ................. The person holding the office at the time the impugned order was issued, is allowed to occupy the office forthwith In our view this direction does not fall within the four corners of a writ of quo wairanio. This Court has held in Azad Jammu and Kashmir Government vs. /</;. Noor-ttl-Amin (PLJ 1991 S.C.(AJK) 20) that in a writ of quo warranto the only relief which can be given by the High Court is confined to issue an injunction not to act in the disputed office and to declare the office to be vacant. The relevant portion may be usefully reproduced:— "It is clear that while acting under sub-clause (ii) of clause (b) above, the High Court has to confine its inquiry as to the authority of law under which the concerned person claims to hold that office. There is no other power which is conferred by this clause on the High Court. If after necessary inquiry the High Court comes to the conclusion that the respondent before it does not have the lawful authority to occupy that office the High Court can make a declaration to that effect whereupon the office so held becomes vacant. The Supreme Court of Pakistan held in Masudul Hassan v Kiiadim Hussain and another (PLD 1963 S.C. 203) that powers of granting relief in proceedings of quo warranto are confined (a) issuing an injunction to a person holding the office not to act therein, and (b) where necessary, to declare the office to be vacant. There is nothing in sub-clause (ii) from which the High Court may derive the authority to travel beyond the limits as enunciated above.Even otherwise, the aforesaid direction given by the High Court amounts to posting of a particular civil servant to the post of the Divisional Forest Officer Muzaffarabad for which the necessary authority does not vest in the High Court or this Court. Consequently, the portion of^ the order of the High Court reproduced above shall stand vacated. With the modification indicated above we find no force in this appeal and order its dismissal. (MBC) (Approved for reporting) Appeal dismissed

PLJ 1993 SC (AJK) 11 [Appellate Jurisdiction] PLJ 1993 SC (AJK) 11 [Appellate Jurisdiction] Present: SARDARSAiD muhammad khan, CJ, and basharat ahmad shaikh, MUHAMMAD ILYAS SULER1 and another-Appellants versus MUHAMMAD NASEEM KHAN and 2 others-Respondents Civil Appeal No. 40 of 1992, accepted on 12.12.1992 [On appeal from judgment and order of High Court, dated 18.4.1992, passed in Writ Petition No. 105 of 1991] Expunction of Remarks-- —Matter pertaining to terms and conditions of service—Writ petition dismissed but some observations made by High Court-Expunction of observations- Prayer for~It was rightly observed by High Court that matter relating to terms and conditions of service, cannot be adjudicated upon in exercise of writ jurisdiction-However, observation that interpretation adopted by appellants runs counter to judgments of superior courts in previous proceedings, is legally untenable on merits-It is a cardinal principle of administration of justice that courts do not enter into exercise in futility nor in an exercise which is purely academic in nature-Held: When High Court had no jurisdiction, observations made in para 9 of impugned judgment should not have been recorded by it-­ Para 9 and a portion of para 8 of impugned judgment ordered to be expunged. [Pp.l4&15] A,B,C&D PLJ 1989 SC (AJK) 59 ref. Sardar Rafique Mahmood Klian, Advocate for Appellants. Raja Muhammad Hanif Klian, Advocate for Respondents 1 and 2. Mr. Sardar Klian, Advocate General for Respondent No. 3 Date of hearing: 2.12.1992. judgment Basharat Ahmad Shaikh, J.-This is an appeal, with leave of this Court, filed by the Secretary and the Additional Secretary of the Works Department of the Government who pray that certain portions of the judgment of the High Court recorded on 18th April 1992 may be expunged. The judgment was passed in a writ petition titled "Muhammad Naseem and others vs.Azad Government of J & Kand others". The writ petition has been dismissed by the High Court and it is one of the main grounds on which the appeal is based that having decided to dismiss the petition the learned Judge in the High Court could not have justifiably recorded the observations which are sought to be expunged. The circumstances in which the writ petition was filed may first be noted. In the Public Works Department twenty per cent posts of Assistant Engineers in basis pay scale 17 are reserved under the departmental rules for promotion from amongst Sub-Engineers who are in pay scale 16. Rest of the posts (80 pere cent) are filled up by direct appointment of graduate engineers. In 1989 two posts of Assistant Engineers fell vacant in the twenty per cent quota to be filled up by promotion from Sub-Engineers cadre. Muhammad Naseem Khan and Abdul Rashid Qureshi, respondents herein, were Sub-Engineers at that time. They were at different dates, posted in their own pay and scale as Assistant Engineers. It is obvious that they were not formally promoted but they kept on working for a number of years as Assistant Engineers which posts carry higher grade and status. On 28th of November 1991 the Government issued an order by which both the aforementioned civil servants were "sent back" to their substantive posts of Sub- Engineers on the ground that they had been posted as Assistant Engineers ahead of their seniority. In their places Muhammad Bashir and Abid Hussain Jafri were posted as Assistant Engineers in their own pay and scale. On 14th of December 1991, Muhammad Naseem Khan and Abdul Rashid Qureshi filed a writ petition in the High Court to challenge the aforementioned order issued on 28th of November 1991. Apart from other contentions they raised a point that a writ petition filed by Muhammad Bashir and Abid Hussain Jafri in which Abdul Rashid Qureshi was impleaded as a respondent had been dismissed by the High Court on 15th of September 1991 by holding that Abdul Rashid Qureshi and another person not before the Court (Muhammad Arif Butt) had been unconditionally promoted (as Assistant Engineers) against the quota reserved for Diploma Engineers. The High Court, as stated earlier, dismisse^ the writ petition. It seems necessary to reproduce para 12 of the judgment which contains the reasons of dismissal: "12. Without expressing myself on the merits of the case, legality of the order of petitioners' reversion and respondents 3 and 4's promotion, interse seniority of parties, interpretation and extent of application of Engineering Service rules and competence of respondents, in passing the impugned order specially in view of the judgments of the High Court and Supreme Court wherein claim of the respondents was rejected; the fact still remains that the matter being related to the terms and conditions of civil servants, interference by this Court, may amount to overstepping its extraordinary jurisdiction, especially when the matter is being dealt with B by the competent departmantal authority and the Minister concerned, who is 'responsible for policy matters and for the conduct of business of his Department' in the light of rules 4 and 6 of the Rules of Business, has already recommended the cancellation of order of the Petitioners' reversion to the Prime Minister vide his note reproduced hereinabove. A comprehensive note depicting the legal position hardly needs any addition. Let the Prime Minister, who is competent authority in the case in hand, pass a final order first, on the note of Minister concerned, with respect to the matter in controversy, of course expeditiously. Aggrieved party can approach to the proper forum for redress of his grievance, after the disposal of the matter by the competent departmental authority. The writ petition is dismissed in the light of above observations without/any order as to costs." The portions of the judgment which are sought to be expunged in this appeal are para 9 in full and the following portion of para 8:- "First, the Additional Secretary and then the Secretary PWD, on the further order of the Court submitted the clarifications but in an evasive and loathsome manner. The clarifications were submitted on March 16, 26, April 01, 1992 and the last on April 01, 1992. The later relevant for the purpose are reproduced as": Para 9 runs as follows:- "It is regretfully remarked that Public Works Secretariat staff has substituted its own judgments as against the judgments of the High Court and the Supreme Court. Judgments of the Courts have to be followed and observed in the manner those are delivered. The interpretation of law, no doubt, is the duty of the bureaucracy as well, but when a provision of law or any other particular situation is interpreted or dealt with by the Courts, it over-rides interpretations and opinions of all the authorities, subject to the dictum of final appellate Court. The judgments of the Courts have to be carried into .effect and observed as -they are notwithstanding the personal opinions of the authorities vested with the implementation of the order. The Works Secretariat in the instant case, has, by its whimsical interpretation of judgments eroded the authority of Courts. The transfer application levelling contemptuous allegations and evasive response to the orders of the Court by respondent No. 2, are such of his commissions and omissions, which are not becoming of a civil servant at the apex of administration." We have heard the learned counsel for the parties at some length. It was vehemently contended by Sardar Rafique Mahmood Khan, the learned counsel for the appellants, that the High Court was not right in observing that the Secretary and the Additional Secretary of Public Works Department substituted their own judgments as against the judgments of the Supreme Court and the High Court. He referred to notes written by the appellants and also the previous judgments, mentioned above to contend that the observations were unfounded. It was urged by him that appellants could not even think of doing such a thing. On the other hand Raja Muhammad Hanif Khan Advocate took pains to explain that the observations were well founded. He relied on a reported judgment of this Court Inam-ur-Rahim Shah vs. Tlie State [PLJ 1989 S.C. (AJK) 59] in which this Court expressed the view that Courts should be allowed to perform their functions freely and fearlessly and without undue interference by the superior Courts. It was also observed that it was desirable that a judgment should remain in the shape in which it was origianlly published unless there are good reasons for'deleting irrelevant or unnecessary passages. As is clear from the facts of the case, it is a service matter, and the dispute is about terms and conditions of service. As rightly observed by the learned Judge in the High Court, the matter cannot be adjudicated upon in exercise of writ jurisdiction. It falls • within the jurisdiction of the Service Tribunal and the jurisdiction of the High Court stands totally ousted by Section 47 of the Azad Jammu and Kashmir Interim Constitution Act 1974. In the paragraph under reference the learned Judge observed that the matter was still pending with the competent departmental authority, therefore, he (the learned Judge) thought it fit not to go into the merits of the respective claims of the parties at that stage. ,j| However, by observing that interpretation -adopted by the Secretary and Additional Secretary of Public Works Department, the appellants before us, runs counter to the judgments of this Court and the High Court in the previous proceedings, a judgment has been passed that the appellants' stand is legally untenable on merits. When the High Court did not have the jurisdiction to decide the case and even otherwise it was found that the writ petition was premature then there was no justification in law to discuss the merits of the case. The reasons recorded by the Courts of law form the basis of a decree, order, declaration or sentence which is passed by a Court. If no decree, order declaration- or sentence has to be passed there should be no occasion to record reasons or conclusions. It is a cardinal principle of administration of justice that Courts do not enter into an exercise in futility nor in an exercise which is purely academic in nature. While resolving disputes which are brought before it a Court determines the rights and liabilities of parties before it and dispenses justice in a concrete shape. Thus we reach the conclusion that the observations made in para 9 should not have been recorded by the High Court irrespective of the fact whether these observations are factually or legally correct or not. It follows that even this Court should not decide the issue whether the position adopted by the Secretary and the Additional Secretary, the appellants before us, is correct or not because if we do so and come to the conclusion that the position taken by the appellants runs counter to the previous judgments of the High Court and this Court it would mean that inspite of the accepted legal position that in a proceeding arising out of a writ petition the terms and conditions of civil servant cannot be adjudicated upon we would be precisely entering into that exercise. By doing so we would also be commenting upon a matter which is still pending with the competent departmental authority. In this view of the matter para 9 of the judgment of the High Court has to be expunged from the judgment. The appellants seek expungment of another passage of the judgment in para 8. Keeping in view the overall facts of the case we are of the opinion that the words " but in an evasive and loathsome manner" should not have been recorded in the judgment under appeal. We accept the appeal and order that following portions of the judgment of the High Court in Writ Petition No. 105/91 titled "Mohammad Nasim Klian vs. Azad Government and others" shall be expunged:- (i) The words " .. but in an evasive and loathsome manner" occuring in para 8; and (ii) Para 9 as a whole. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC (AJK) 15 [Appellate Jurisdiction] PLJ 1993 SC (AJK) 15 [Appellate Jurisdiction] Present: SARDAR SAID MUHAMMAD KHAN, CJ AND BASHARAT AHMAD SHAIKH, Haflz PERVAIZ AKHTAR-Appellant versus MUNICIPAL COMMITTEE, MIRPUR, through its Chairman, and 3 others-Respondents Civil Appeal No. 17 of 1992, accepted on 30.11.1992 [On appeal from judgment and order of High Court, dated 27.2.1992, passed in Writ Petition No. 29 of 1991] (i)Aggrieved Person- —Plot in New Mirpur Town-Allotment to respondent No. 3—Challenge to~ Whether appellant was not an aggrieved person and had no locus standi to file writ petition—Question of—Contention that High Court fell in error in holding that appellant was not an aggrieved person-Fact that there was no application of appellant pending with concerned authority, does not lead to conclusion that he was not an aggrieved person-There is mandatory provision of Regulations that applications be invited from general public-Assertion in writ petition that plot was secretly allotted, was not specifically denied in written statements filed by respondents-Petitioner is son of a Mangla Dam displaced person, is resident of New Mirpur Town and is also a State subject-Thus he is qualified for allotment of plot in New Mirpur Town-He applied for allotment of plot as far back as 1979-Held: Appellant had locus standi to file writ petition. [Pp.l8,19&20] A,B,C&D PLJ 1992 SC (AJK) 57 rel. (ii) Allotment- —Plot in New Mirpur Town-Allotment to respondent No. 3-Challenge to-It is clear that Chairman of Municipal Committee is not competent to make allotment of a plot-Apart from that, respondent No. 3 is not head of an independent family-She is a member of her husband's family who admittedly olds an allotment of a plot in Mirpur Town—Held: Order of allotment in favour of respondent No. 3 is illegal. [P.20]E (iii) Laches-- —Plot in New Mirpur Town-Allotment to respondent No. 3-Challenge to- Whether writ petition was hit by principle of laches-Question of-Impugned order of allotment was passed on 27.6.1990 while writ petition was filed on 23.5.1991—Since appellant was not a party to proceedings of allotment, starting point of delay would commence from date of knowledge-Appellant had averredjn writ petition that he came to know about factum of allotment few days ago when respondent No. 3 tried to take possession through her relatives- -This averment was duly supported by affidavit-There is nothing on file to show as to how department came to know that appellant in fact acquired knowledge of allotment since long-Held: Objection about laches has no force and is over-ruled-Appeal accepted and allotment of respondent No. 3 cancelled. [Pp.20&21]F&G Ch. Muhammad Taj, Advocate for Appellant. Ch, Muhammad Riaz Inqalabi, Advocate for Respondents. Date of hearing: 22.11.1992. judgment Basharat Ahmad Shaikh, J.--A writ petition filed by the appellant before us, Hafiz Pervaiz Akhtar, to challenge the allotment of the plot in dispute to Mst. Showahid Begum has been dismissed by the High Court as being 'not maintainable'. He has now appealed with leave of the Court. In the writ petition filed by the present appellant it was alleged that plot in question had been allotted by the Chairman of the Municipal Committee alone but he had no power to allot or regularise a marked plot. A certified copy of the allotment order, which was attached with the writ petition, shows that the Chairman had allotted plot No. 134 Khambal Sector New Mirpur Town to Mst. Showahid Begum daughter of Noor Alam. It was also averred in the petition that Mst. Showahid Begum was a married lady and her husband Muhammad Akram had already been allotted a plqt in the town. It was also alleged that different plots also stood allotted to her father and brother. Copies of the provisional allotment orders in favour of her father, Noor Alam, and her brother, Muhammad Yasin, were attached with the writ petition. It was also submitted that allotment in favour of Mst. Showahid Begum had been made secretly. So far as the maintainability of the writ petition was concerned it would be useful to reproduce the contents of para 1 of the writ petition:- "1. that the petitioner is displaced person, resident of Mirpur and is a State Subject, has applied for the allotment of ten marlas plot in Khambal Sector, New Mirpur, Azad Kashmir and has got no other allotment in Mirpur or in any other hamlets." It was claimed in para 4 of the petition that the petitioner was an aggrieved person. In the written statement filed by Mst. Showahid Begum it was admitted that allotments had been made in favour of her husband, father and brother. It was contended that writ petition had been filed belatedly, although the factum of allotment was known to Had/ Pervaiz Akhtar. It was also contended that the petitioner was not an aggrieved person. In the written statement filed by the respondents it remained undenied that the plot was secretly allotted. In the judgment under appeal it was held by the High Court that an application for the allotment was filed by Hafiz Pervaiz Akhtar on 30th of May 1979 through one Lai Din as attorney. In that application he was shown to be of 16 years of age and as living with his father who was a Mangla Dam affected person. The application was for a plot in Khambal Sector, not for any particular plot. It was observed by the learned Judge in the High Court that the plot in dispute stood allotted to another person till 1988 when its previous allottee was given another plot in lieu of disputed plot and the plot in dispute became available for allotment. It was noted that Hafi/ Pervaiz Akhtar did not file fresh application for allotment of the plot in dispute or any other plot in Khambal Sector with the result that there was no application on behalf of Hafiz Pervaiz Akhtar when the plot in dispute was allotted to Mst. Showahid Begum. Therefore, the learned Judge formed the view that he was not an aggrieved person and could not be allowed to challenge the allotment. No finding was recorded on the question of laches. Ch. Muhammad Taj, in support of the appeal, contended that the High Court fell in error when it held that the application filed by the appellant had been rejected. He submitted that in the certified copy filed with writ petition by the present appellant the word "rejected" is inscribed, but it is not proved that this word was written by any person who was competent to reject the application. He contended that no single person was competent to reject an application for allotment. We are of the view that this question need not be resolved because, as contended by Mr. Muhammad Riaz Inqalabi, the learned counsel for Mst. Showahid Begum, the application is addressed to the Mirpur Development Authority. In the year 1979 when this application was moved, power of allotment was vested only in the Mirpur Development Authority and it was subsequently that New Mirpur Town was demarcated into two parts and allotment work in one part was handed over to Municipal authorities and not to the Development Authority with whom appellant's application had been filed in 1979. The Municipal Committee could not consider the application even if it had not been rejected. Consequently, it makes no difference whether this application had been rejected or not. We have reproduced para 1 above from the writ petition. The appellant did not claim in his petition that the application was still pending. It appears that he mentioned the factum of his filing the application in connection with his entitlement to seek allotment. We note that the application is not in respect of the plot in question but is a general application for allotment of a plot in Khambal Sector. The learned counsel for the appellant, Ch. Muhammad Taj, vehemently contended that the High Court fell in error in holding that the appellant was not an aggrieved person. He relied on a judgment of this Court in case titled Maqsood Hussain vs. Chairman Municipal Committee, Mi/pur (PLJ 1992 SC (AJK) 57). On the other hand Mr. Muhammad Riaz Inqalabi vehemently contended that there was no application pending with the concerned authorities for allotment of any plot on behalf of the appellant and merely because an application had been filed by him with the Mirpur Development Authority as far back as in the year 1979 for the allotment of a plot in Khambal Sector did not entitle him to challenge the allotment in favour of Mst. Showahid Begum. In our view the fact that there was no application on behalf of the present appellant pending with the concerned authority does not lead to the conclusion that he was not aggrieved person. It is a mandatory requirement of Mirpur Municipal Committee (Regulations for Development and Disposal of Plots/Estales) 1°85 that applications be invited from general public. If a plot is secretly allotted and applications are not invited a person who is desirous of seeking an allotment cannot be expected to file an application for allotment. In the writ petition it was alleged that the plot in dispute was allotted secretly (and it) was not specifically denied in the two written statements filed in the case. The respondents have not claimed that applications were invited from the general public before, making the allotment in favour of Mst. Showahid Begum. Thus the mandatory provision of Regulations mentioned above was violated. From the record it is clear that petitioner is a son of Mangla Dam displaced person, is resident of New Mirpur Town and is also a State Subject. Thus he falls in three different categories of the persons who are qualified for allotment of plots in New Mirpur Town. He filed an application for allotment as far back as in 1979 when he was only 16 years old. When he filed the writ petition he was about 28 years old but has not been allotted a plot. The judgment in Maqsood Hussain's case applies to these facts and must be followed. The reliance of the learned counsel for the appellant on the following portion of Maqsood Hussain's case, mentioned above, is well placed:- "Next, it has been half-heartedly contended by the learned counsel for respondent No. 4 that the appellant is not an 'aggrieved person' because the plot was allotted to respondent No. 4 in the year 1987, when the 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 juristic sense vested 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 Rchman, C.J., who spoke for the Court in that case:- Thc right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough i! i!k applicant discloses that he had a personal interest in the pcrluriTuince 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 two improvement schemes had appropriated a particular 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 to 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." Keeping these facts in view Hafiz Pervaiz Akhtar had the locus standi to file the writ petition. This point also stands directly concluded by another judgment of this Court in Raja Muhammad Asif vs. Chairman Municipal Committee Mirpur (Civil Appeal-No. 78 of 1991), in which it was held:-- " Even if we assume that he had not filed an application that would not be an adverse factor because of the fact that, as claimed, the relevant authority had not invited applications while it is specifically laid down in the regulation No. 7 that "whenever the plots/farms are to (be) disposed of through allotment a notice giving sufficient particulars of plot/farm inviting applications within a specified period shall be issued by the committee, " For the time being there is nothing on the record to contradict this assertion which, as already noted, is supported by an affidavit. If it is true that the applications were not invited then any person who falls within the category to hom a plot can be allotted in the Mirpur Town can challenge an allotment made without inviting applications by filing a writ petition. This proposition stands concluded by a judgment of this Court in case titled "Maqsood Hussain vs. Chairman Municipal Committee, Mirpur" (PLJ 1992 SC(AJK) 57)". So far as the merits of the case are concerned it is clear that the Chairman of the Committee is not competent to make the allotment of a plot. Apart from that Mst. Showahid Begum is not head of an independent family. She is a member of her husband's family who admittedly holds an allotment of a plot in Mirpur Town. Thus the order of allotment in favour of Mst. Showahid Begum is illegal.The only question which now remains to be seen is the alleged laches. The impugned order of allotment was passed on 27.6.1990 while the writ petition was filed on 23.5.1991. Since the appellant was not a party in the proceedings of allotment the starling point of delay would commence from the date of knowledge. It was averred in the writ petition that the appellant came to know about the fuctum of allotment "few days ago when Msl. Showahid Begum tried to take possession through her relatives". An affidavit was duly filed in support of the averment. This fact was denied in the written statement filed by the respondents. It was stated in reply to the relevant averment that the plot in dispute was in possession of the answering respondent and that Hafiz Pervaiz Akhtar knew the fact of allotment "since long". An affidavit sworn by Muhammad Yasin, attorney of Mtf.Showahid Begum, was also filed in support of this averment. There is nothing on the file to show as to how the department came to know that Hafiz Pervaiz Akhtar in fact acquired knowledge of the allotment "since long". "Since long" is a vague term and even if it is accepted as true it does not necessarily mean that Hafiz Pervaiz Akhtar's knowledge extended to such a time which would amount to laches. It is also to be noted that no material change has been brought about during the intervening period. The objection has no force and is overruled. In view of the foregoing analysis we accept the appeal, set aside the order of the High Court and order the acceptance of the writ petition filed by Hafiz Pervaiz Akhtar. Consequently the plot in dispute shall stand cancelled from the name of Mst. Showahid Begum and shall go to the general pool and may be allotted in accordance With law. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC (AJK) 21 PLJ 1993 SC (AJK) 21 [Appellate Jurisdiction] Present: SARDAR SAID MUHAMMAD KHAN, a AND BASHARAT AHMAD SHAIKH J. GOVERNMENT OF PAKISTAN, THROUGH SECRETARY, MINISTRY OF DEFENCE, and another — Appellants versus GUL ZAMAN and 8 others — Respondents Civil Appeal No. 48 of 1992, dismissed on 20.1.1993. [On appeal from judgment of High Court dated 4.7.1992, in W.P.No.6 of 1990] Appeal Appeal to Supreme Court — Whether competently filed ~ Question of — There is nothing on record to show that two vakalatnamas subsequently brought on record, were in existence when petition for leave to appeal was filed — It is not case of appellant No.l that vakalatnamas had been signed before institution of petition but inadvertantly could not be filed in Court — It is clear that Advocate who filed appeal on behalf of appellant No.l was not duly appointed counsel — Appellant No. 2 has no locus standi to file appeal being not aggrieved of order or decree passed by High Court. - Meld: There is no valid appeal on behalf of Government of Pakistan and appellant No.2 has no locus standi to file an appeal -- Appeal dismissed. [Pp 23,24&25] A,B,C, & D (( PLJ 1984 SC (AJK) 54 rel. PLJ 1990 SC 428 and PLJ 1990 AJK 14 distinguished. Sycd Nazir Hussain Shah Kazmi, Advocate for Appellant No. 1. Mr. Muhammad Yaqooh Mughal, Advocate for Respondents 1 to 3. Sardar Muhammad Sadiq Khan, Additional A.G. for Respondents 4 to 6. Mr.M, Tabassarn A/tab Alvi, Advocate for Respondent No.7. Date of hearing: 13.1.1993. JUDGMENT Basharat Ahmad Shaikh, J.- The High Court accepted a writ petition filed by respondents Gul Zaman, Khani Zaman and Sher Zaman and declared as illegal an award in respect of the land in dispute which was sought to be compulsorily acquired for public purpose. The present appeal, with leave of the Court, has been instituted by Government of Pakistan through Secretary Ministry of Defence and Military Estates Officer Hazara Circle Abbottabad, The Collector, whose order was quashed by the High Court, has not appealed. It has been contended by Mr.Muhammad Yaqoob Mughal, the learned counsel for respondents Gul Zaman and 2 others mentioned above, that the appeal has not been validly instituted and entails dismissal on this ground alone. It has been pointed out that when petition for leave to appeal was filed on 1st of September 1992 no vakalatnama on behalf of the Government of Pakistan was attached with the petition and only a vakalatnama signed by Military Estates Officer .Hazara Circle Abbottabad was included in the file. A vakalatnama signed by the Deputy Secretary in the Ministry of Defence was filed in the office on 20th of September 1992. It was thus contended by the learned counsel that the petition for leave to appeal, which was subsequently converted into appeal, could not be deemed to be validly instituted on behalf of the Government of Pakistan. He further submitted that an additional factor which destroys whatever value the subsequently filed vakalatnama carried is that limitation had already expired when vakalatnama was placed on record. In respect of the other appellant, namely, Military Estates Officer Hazara Circle Abbottabad, the learned counsel contended that he had no right under law to challenge the order passed by the High Court. Syed Nazir Hussain Shah Kazmi Advocate controverted the submissions made on behalf of the learned counsel for the respondents. He vehemently submitted that vakalatnama filed subsequently in the Court validated the institution of the petition for leave to appeal on behalf of the Government of Pakistan. He submitted that vakalatnama filed in the Court sufficiently proves that the Government of Pakistan wanted to file an apeal from the order of the High Court and thus the appeal was not un-authorised. The learned counsel also submitted that Military Estates Officer was one of the respondents in the High Court and, therefore, could file an appeal against the order passed by that Court. He also submitted that the said appellant was vitally interested in the result of the proceedings. He relied on Pakistan Vs. Messrs. Q.M.R.Expert Consultants [PLJ 1990 S.C. 4287 and Muhammad Munshi Vs. Mst. Rakiya Bi [PLJ 1990 AJK 14]. Rule 2 Order XIII of the Azad Jammu and Kashmir Supreme Court Rules 1978 requires that the petition for leave to appeal shall be signed by the counsel or by the party if he appears in person. Petition for leave to appeal filed in this Court was signed by Syed Nazir Hussain Shah Kazmi purportedly as a counsel for Government of Pakistan. The question is whether he was a validly appointed counsel or not. It is provided in rule 19 of Order IV of the Azad Jammu and Kashmir Supreme Court Rules that every Advocate on record shall before acting on behalf of any person or party file in the Registry a power of attorney in the prescribed form authorising him to act. When petition for leave to appeal was filed it was pointed out that there was no vakalatnama on behalf of the Government of Pakistan but no vakalatnama was filed even on 12th of September 1992 when the case next came up before the Registrar and Syed Nazir Hussain Shah Kazmi obtained an adjournment for that purpose. A vakalatnama signed by the Deputy Secretary in the Ministry of Defence was filed in the Court on 20th of September 1992. This vakalatnama does not bear any date. Another vakalatnama was filed in the office on 2nd of December, 1992 when leave had already been granted. The reasons. and circumstances in which this vakalatnama was brought on the record have not been explained to us. Leave in the case was granted on 28th September 1992 and there was no date of hearing either before the Registrar or before this Court when second vakalatnama was filed. It appears that it was presented to the Registrar who ordered that it should be filed. This vakalatnama bears the signature of the Secretary Government of Pakistan in the Ministry of Defence but conspicuously the date on which the said officer signed the vakalatnama is also missing. Another document was filed on the same day. It is a letter from the Section Officer Government of Pakistan in the Ministry of Law, Justice and Parliamentary Affairs and is addressed to Syed Nazii Hussain Shah Kazmi requesting him to conduct the case on behalf of the Federal Government. There is nothing on the record to show that two vakalatnamas subsequent!) brought on the record were in existence when the petition for leave to appeal was filed, As already noted the dates on which the vakalatnamas were signed by the concemec officers are missing. This fact leaves no scope for the argument that filing of thi petition for leave to appeal was duly authorised by the Government of Pakistan. Th< Court fee stamps affixed on the vakalatnamas are of 16th of September and 1st o December 1992. These dates do not advance the case of the appellant. It is not thi appellants' case that vakalatnamas had been signed before institution of the petition fo leave to appeal but inadvertently could not be filed in the Court. Therefore we need no go into the question whether in such an eventuality a petition for leave to appeal can bi legally deemed to be duly instituted. The law on this point has been laid down in Az.at J &K Govt. Vs. Habibullah Lone (PLJ 1984 SC (AJK) 54), in the following words:- "13. Besides, rule 19 of Order IV of the Azad Jammu & Kashmir Supreme Court Rules, 1978, regulates the procedure in this behalf which lays down the conditions that are necessary for investing an Advocate with the authority to act on behalf of a person! The relevant provision is : 'Every Advocate on record shall before acting on behalf of any person or party file in the Registry a power of attorney in the prescribed form authorising him to act'. This provision would clearly show that before an Advocate an ct for a party he must firstly have an authority by him to do so and secondly the authority must be in writing by the party. Unless these two conditions i are complied with an action taken by an Advocate on behalf of a person would not be deemed to be a valid performance of his function. In the absence of a duly executed power of attorney it would be said that such an Advocate had no authority to act on behalf of that person. A pleader who files a etition for leave to appeal cannot do so except when he is authorised in writing by such a person. Therefore, filing of a petition on behalf of Government by Sardar Rafique Mahmood who had not been duly appointed by the overnment in writing, as required under rules, is ; not only an irregularity which may be cured at a subsequent stage but it is also completely devoid of validity." Pakistan Vs. Messrs Q.M.R.Expert Consultants [PLJ 1990 S.C. 428] ;ited by Syed Nazir Hussain Shah Kazmi does not deal with the question of vhich we are seized in the present appeal. So far as the judgment of A J & K rligh Court in Muhammad Munshi's case is concerned it runs counter to this Court's dictum in Habibullah Lone's judgment and does not lay down correct aw that appointment of a counsel can be subsequently ratified. It is, therefore, clear that the Advocate who filed the petition for leave to appeal <n behalf of the Government of Pakistan was not duly appointed counsel for that party nd consequently there is no valid appeal in this Court so far as the Government of 'akistan is concerned. In view of this conclusion we need not go into the question /hether that Government had the locus stand! to file an appeal in this Court. We now turn to the case of Military Estates Officer. Appeal to this Court can be referred by a person who is aggrieved of the order or decree passed by the High !ourt. The High Court has in its order quashed the order passed by the Collector Land icquisition and no order has been passed against the Military Estates Officer. It is true lai Miiiiary Estates Officer was arrayed as a respondent in the writ petition alongwith t zad Government of the State of Jammu and Kashmir, Revenue Commissioner, D.Q. tation Headquarter Muzaffarabad apart from the Collector Land Acquisition, but it r as not explained in the writ petition as to why Military Estates Officer was being npleaded as a respondent. Likewise it has not been explained in the memorandum of apeal filed in this Court as to why the Estates Officer was filing an appeal from the order of the High Court. We do not find that the Military Estates Officer has any locus standi to file the appeal. No order has been passed against him. No order or proceeding taken by him has been quashed by the High Court. If the order passed by the Collector Land Acquisition is revived by this Court the Military Estates Officer dose not stand to gain anything. It was contended by Syed Nazir Hussain Shah Kazmi that the Military Estates Officer was a representative of the Government of Pakistan. There is nothing on the record to substantiate this plea but even if it is so, a representative has no separate entity. Therefore, the appeal filed by the Military Estates Officer is not competent. We have found that there is no valid appeal on behalf of the Government of Pakistan and also that Military Estates Officer has no locus standi to file an appeal. Therefore, we need not go into the merits of the case which have been elaborately argued before us. The appeal, therefore, is dismissed. No order as to the costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC(AJK) 31 PLJ 1993 SC(AJK) 31 [Appellate Jurisdiction] Present: SARDAR SAID MUHAMMAD KHAN, CJ and BASHARAT AHMAD SHAIKH J. GHULAM RASOOL and 3 others - Appellants versus MUHAMMAD SIDDIQUE and 5 others - Respondents Civil Appeal No.85 of 1992, accepted on 28.11.1992. [On appeal from judgment and order of High Court, dated 17.10.1992, passed in W.P.No.77 of 1992.] Casting vote No-confidence against Chairman of Union Council — Presiding Officer — Whether Vice Chairman who presided over meeting exercised a casting vote — Question of - - Meaning of "casting vote" is a vote which is exercised in case of equality — In this case, if vote of Presiding Officer is excluded, there was no tie or equality of votes because then ratio would have been 3:2 — Held: Fact that personal vote exercised by Presiding Officer made votes in favour of no-confidence motion equal to minimum requirement, does not make it a case of equality of votes — Held further: Respondent No.l was validly removed from his office — Appeal accepted. [Pp 33 & 34] A, B, & C Ch. Muhammad Taj, Advocate for Appellants. Ch. Muhammad Sharif Tariq, Advocate for Respondnet No. 1. Date of hearing: 22.11.1992. JUDGMENT Basharat Ahmad Shaikh, J. - This appeal, by leave of the Court, arises out of an order of the High Court recorded on 17th of October 1992, whereby a writ petition filed by respondent Muhammad Siddique was accepted and the proceeding of no-confidence motion carried against him as Chairman of Union Council Rathowa Muhammad Ali Tehsil Mirpur was declared invalid. Four members of the concerned Union Council seek the reversal of the judgment of the High Court. The relevant facts are that three members of the Union Council moved an application requesting the Vice Chairman to summon a meeting to consider a vote of no-confidence against the Chairman of the Union Council, Muhammad Siddique. The total number of the members of the Union Council is six and, according to the rules, 2/3rd votes are required for the success of the no-confidence move. At the meeting held to consider the no-confidence motion, four members voted in favour of the motion. Vice Chairman of the Council Muhammad Sadiq presided over the meeting and exercised his vote in favour of the motion. Writ petition filed by Muhammad Siddique was accepted on the ground that according to sub-rule (4) of rule 8 of the AJK Local Councils (Vote of No-confidence against Chairman and Vice Chairman) Rules, the Vice Chairman of the Council who was presiding over the meeting in which the vote of no-confidence was passed was not entitled to vote. The relevant sub-rule runs as follows:- "(4) The Presiding Officer, if a member shall be entitled to cast his personal vote but shall not have a casting vote"In support of the appeal, Ch. Muhammad Taj, the learned counsel for the appellants, submitted that the provision reproduced above has been wrongly interpreted by the learned Judge in the High Court. He contended that the provision entitles the Presiding Officer to cast his personal vote and this right cannot be taken away by the subsequent provision. The learned counsel relied on"Law Lexicon" by Wharton in which nature of a casting vote has been analysed in light of different legal provisions. On the other hand the learned counsel for the respondents, Ch. Muhammad Sharif Tariq, vehemently contended that casting vote is that vote which decides a motion and since without the vote of Presiding Officer the vote of no-confidence could not have been passed the vote thus exercised was a casting vote and was exercised in violation of sub-rule (4) mentioned above. In the judgment of the High Court the following two interpretations of the 'casting vote' were relied upon:- (i) According to Black's Law Dictionary, it is the "deciding vote caste by the Presiding Officer to break tie"; and (ii) According to Wharton's Law Laxicon it is "the vote given by the Chairman or President of a deliberative assembly when the sufferages of the meeting are equal". In the present case there was no tie r equality of votes but in para 8 of the judgment of the High Court the High Court adopted the following reasoning: - "In present case, though the number of votes cast by the members for and against the motion was not equal nor there was tie, but at the same time, by exclusion of vote of the Chairman, the required two-third majority was not attainable. Thus, by inclusion of vote of the Vice Chairman, two-third majority was attainable. Therefore, by literal construction of the term "casting vote", the vote of the Vice Chairman was not countable in the light of the restriction imposed under sub-rule (4) of rule 8. By exclusion of vote of the Vice Chairman, the two-third majority in support of motion of no-confidence was not available". This reasoning is not sustainable. The High Court had in the earlier part of the order expressed the view that casting vote meant a vote which was exercised in case of equality but then proceeded to hold that by "literal construction" the vote of the Vice Chairman was not countable. The word "literal" means "by letter". Meaning of the "casting vote" is a vote which is exercised in case of equality. There is no question that a "literal construction" should make room for any other meaning when there is no tie. Different provisions are made in respect of a 'casting vote' by statutes. Some statutes provide that a person who has a vote shall not exercise it until it is required to break a tie or, in other words, where votes are equal. There are other statutes which provide for a second vote which can be exercised when, having already exercised his personal vote, the Presiding Officer is allowed to cast another vote if there is a tie. In the present case if the vote of the Presiding Officer is excluded there was no tie or equality of votes because then there would have been three votes on one side and two on the other. The fact that the personal vote exercised by the Presiding Officer made the votes in favour of the no-confidence motion equal to the minimum requirement does not make it a case of equality of votes. It may be observed that a member of a Union Council is elected under the AJK Local Government Act and according to the scheme of the Act transactions of the Local Councils are carried out by members of these councils who take decisions by exercising their right of vote. Section 15 specifically deals with the exercise of vote by members of the local council in no-confidence proceedings. Sub-section (1) of this Section, which is relevant to the subject under discussion, is as follows:- "(1) A Chairman/Vice Chairman of a local council shall vacate the office if a vote of no-confidence is passed against him in the prescribed manner by 2/3rd majority of the total members of the local council". This provision gives the right to every member of a local council to exercise his vote in a vote of no-confidence but the votes have to be exercised in the prescribed manner. The aforementioned manner is laid down in the AJK Local Council (Vote of no-confidence against Chairman or Vice Chairman) Rules. It needs no authority to observe that the rules cannot be inconsistent with the parent Act. Since Section 15 does not deprive any member of the local council from the right to vote, it follows that rules made thereunder cannot have a provision to that effect. It is, therefore, not possible to read an inconsistent provision in sub-rale (4) of rule 8 under examination. Sub-rule (4) mentioned above in fact does not lay down anything inconsistent with Section 15 of the Act. It is a basic rule of interpretation that every part of a provision of law has to be given effect to and any construction which would leave without effect any part of the language of the statute will be normally rejected. Keeping this rule in mind it is not possible to hold that later part of subrule (4), namely, that Presiding Officer shall not have a casting vote destroys the earlier part of the provision that the Presiding Officer shall be entitled to cast his personal vote. As we read it the second part of sub-rule (4) clarifies that although Presiding Officer can exercise his personal vote but he shall not exercise a vote in the nature of a casting vote. In light of the conclusion as aforesaid, respondent Muhammad Siddique was validly removed from his office. Consequently, we accept the appeal and set aside the order of the High Court with no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC (AJK) 35 PLJ 1993 SC (AJK) 35 [Appellate Jurisdiction] Present: BASHARAT AHMAD SHAIKH, J Syed MANZOOR HUSSAIN GILANI ~ Petitioner Versus SAIN MULLAH LONE and others - Respondents Civil P.L.A. No.54 of 1992, accepted on 20-9-1992. 3 [On appeal from order of High Court, dated 29-7-1992 in W.P.No.79 of 1992] Quo Warranto Quo Warranto — Writ of — Issuance of — Challenge to — Supreme Court has power to examine question whether rule nisi issued against a Judge of High Court, is based on cogent ground which makes out a prima facie case, and has not been issued as a matter of course without proper application of mind — Held: Submissions on question whether order of High Court discloses a prima facie case or not, have force - Leave granted and proceedings stayed,.^ 38 & 391 A B c &D PLJ 1987 SC(AJK) 34 rel. Mr. Ghulam Mustafa Mughal, Advocate for Petitioner. Sh. Abdul Aziz, Advocate for Respondents. Date of hearing: 20-9-1992. ORDER The petitioner Syed Manzoor Hussain Gillani is a Judge of the High Court. He was appointed vide Notification issued on 5th of May 1991. Respondent Mr. Sain Mullah Lone, who is a practising Lawyer at Muzaffarabad, filed a writ of quo warranto on 28-7-1992 claiming therein mat Syed Manzoor Hussain Gillani could not legally hold the post of Judge of the High Court. The writ petition was admitted for regular hearing on 29th of July 1992 by a Division Bench. Syed Manzoor Hussain Gillani seeks leave to appeal and prays that admission order may be vacated and the writ petition may be ordered to be dismissed in limine. The respondent has put in a caveat. The learned counsel for the respondent Sh. Abdul Aziz vehemently submits that there was no justification for grant of leave because the High Court had only admitted the quo warranto writ for regular hearing in view of the fact that a prima facie case had been made out. Sh. Abdul Aziz vehemently contends that the opinion formed by the High Court at the admission stage carries weight and the petitioner should contest the case before the High Court rather than seeking leave to appeal. He also submits that the High Court should be allowed to decide die case and only then this Court may exercise its appellate jurisdiction. In mis connection I may reproduce the following observations made by me as a member of the Bench which decided the Civil Misc. Petition No. 19 of 1990 titled Sardar Sikandar Hayat Khan vs. Syed Ghullam Mujtaba Bokhari:- " The High Court is a Court created by the Constitution andit is primarily the High Court which is clothed with the powers of issuing writ petitions. It is only after the High Court has become functus qfficio that normally a case is called up by this Court. But it cannot be denied that this Court has the power to interfere at an earlier stage and pass any suitable order where a case is made out. If there was any doubt on this point it has been set at rest by a judgment of this court in a case titled Qazi Bashir Ahmad vs. Amjad Ali (Civil Appeal No. 13 of 1988)" In another case Kh. Noor -ul - Amin vs. Sardar Muhammad Abdul Qayyum Khan (Civil P.L.A. No.90 of 1991) this Court had the occasion to examine the principles which should be kept in mind while issuing a rule in a writ of quo warranto and Sardar Said Muhammad Khan C.J. speaking for the Court observed that a rule nisi cannot be issued as a routine. The following observations are relevant:- " If initially, he makes out his prima facie case, the burden of proof would shift to the opposite side but if the material facts are not pleaded by the petitioner on which he bases his claim or the same are not sufficient enough to make a prima facie case in favour of the petitioner, it cannot be said that a rule nisi can be issued as a matter of routine. The non-petitioner would be called upon to show he was holding the office under what authority of law would arise only if, in the first instance, the petitioner makes out a prima facie case that he was not so holding the office. The two cases from Indian jurisdiction cited by Kh. Noorul-Amin do not lay down any different rule:- In Mohi Chandra v. Secy., Local Self-Government of Assam (A.I.R. 1953 Assam 12), it was held that when the title to corporate office is in question, the Court will not grant leave to relator to file quot warranto information as a matter of course simply because a reasonable doubt as to the legal validity of the title is shown, but the Court will take into consideration the consequences which would be likely to follow should the information be granted, and also all the circumstances of the application. It was further held that where the petitioner did not enjoy the confidence of the Local Board and the Board did not regard him as a fit person to hold the office of the Chairman, the quo warranto was refused because that will disturb the peace and quiet of the Local Board; in the aforesaid view, the writ was dismissed. In the other case cited by Kh. Noorul-Amin, Mahabir Prasad Sharma v. Prafulla Chandra Ghose (A.I.R. 1969 Cal. 198), while rejecting the application for a quo warranto writ, it was laid down that for the issue of rule nisi it is not enough that controversial questions relating to the Constitution have been raised by the petitioner. The test was whether arguable issues have been raised by the petitioner." The learned counsel for the petitioner Mr. Ghulam Mustafa Mughal, has referred me to an important observation of "this Court in Ch. Muhammad Anwar vs. Ch. Muhammad Rashid [PLJ 1987 S.C. (AJK) 34 ) that a writ of quo warranto is not to be issued as a matter of course on, sheer technicalities on a doctrinaire approach. While making this observation this Court followed Dr. Kamal Hussain and others vs. Muhammad Sirajul Islam and others fPLD 1969 S.C. 42). In light of these principles it can be safely ruled that this Court has the power to examine the question whether the rule nisi issued in the present case against a Judge of the High Court is based on cogent ground which makes out aprima facie case, and has not been issued as a matter of course without proper application of mind. Coming to the merits of the case the learned Judges in the High Court noticed the contentions raised on behalf of Sain Mullah Lone in paragraphs 2 and 3 of their order and then proceeded to conclude as follows: -"We have attended the points raised in the petition. These are vital point; of public importance and constitutional nature, as such it is deemed expedient to admit the petition for regular hearing. Notice shall issue to the respondent..." Paragraphs 2 and 3 are not lengthy and can be reproduced:- "2. It was alleged that the petitioner is a practising lawyer at Muzaffarabad. Respondent No.2 was appointed Judge of the High Court vide Notification issued on May 5, 1991. At the relevant time, there was no vacant post in the High Court for such appointment. The post was created'subsequently on May 30, 1991, as such the recommendation, the advice of the Council and the appointment of respondent No.2 was violative of the Constitution. It was further alleged that respondent No.2 was not holding a valid licence of Pleadership and Advocacy in Azad Jammu and Kashmir. The said licence of pleadership and Advocacy was not issued by the competent authority and the same was nof supported by valid documents in the light of the provisions of rules holding field at the relevant time. Thus, enrolment of respondent No.2 as pleader and Advocate was void ab initio. On that premises, appointment of respondent No.2 as Judge High Court was equally void. 3. It was further alleged that respondent No.2 travelled on Indian passport and Pakistani Visa. He surrendered the same in Azad Kashmir on the condition that he would not claim any privilege available to a refugee or service in Azad Kashmir. Moreover, respondent No.2 being a foreigner, was not eligible for his elevation as Judge of the High Court. The learned counsel cited an unreported case of the Supreme Court, titled "Ghulam Mustafa Mughal and another versus Azad Government and others" decided on June 17, 1992 and an unreported case of this Court, titled "Faiz Muhammad and others versus Imam Din" decided on May 22, 1985 in support of his aforesaid contentions. I have heard the learned counsel for the parties at some length on the question whether the order of the High Court from which appeal is sought discloses a prima facie case or not. In light of the arguments I am of the view that the following submissions of Mr. Ghulam Mustafa Mughal, prima facie, have force: i) It was alleged before the High Court that the post against which Syed Manzoor Hussain Gilani was to draw salary was created on May 30, 1991 while the appointment had already been made on 5 th t of May 1991. It was, therefore, contended that the advice of the Council and the appointment of the petitioner were "violative of the j Constitution", but, prima facie : Section 43 does not refer to the £ existence of a budget provision as a condition precedent for the appointment of a Judge of the High Court ii) It was contended that the Pleadership and Advocacy Licences issued in favour of Syed Manzoor Hussain Gillani were not issued by r the competent authority and were not supported by valid documents. The fact is not denied that Mr. Gilani is a Law Graduate. The f documents filed in this Court show that all licences at the relevan / time were issued by the Chief Justice alone. The licences referred toabove were issued some 16/17 years ago and before his appointment as Judge Syed Manzoor Hussain Gillani practised as an Advocate of the High Court for more than 10 years which is the requirement of law. The argument, therefore, is that the appointment of a Judge cannot be challenged by reopening the validity or otherwise of the icences issued under the administrative authority of the High Court with which concerned Advocates are not associated. iii) The contention contained in paragraph 3 reproduced above that Syed Manzoor Hussain Gilani had undertaken that he would not claim any service in A.K. is on the face of it a mis-statement because the relevant ocument which is in the shape of Government Orderonly lays down the condition that he will not claim any right as a refugee. iv) The assertion made before the High Court that Syed Manzoor Hussain Gilani was foreigner and was not eligible for appointment as a Judge runs counter to the accepted position that Mr. Manzoor Hussain Gilani was a State Subject residing in Occupied Kashmir and after travelling on Indian Passport surrendered it in Azad Jammu and Kashmir . It is also admitted that a State Subject (certificate) was duly issued to him on 30th of September, 1976, at Muzaffarabad. v) According to the certified copies filed in this Court the petitioner acting as Judge of the High Court wrote an order on July 7, 1992 in consequence of which a notice of contempt was issued by the learned Chief Justice on 28-7-1992 to Mr. Sain Mullah Lone. Mr. Lone filed the quo warranto writ immediately afterwards. Since the learned Chief Justice was member of the Bench the High Court should have applied mind with more care because it might have been just a case of counter-blast. Therefore, I am of the view that the question whether, keeping in view that a high constitutional office is involved, the rule nisi in the case has been issued on the basis of cogent reasons showing, prima facie, that appointment may be invalid, or has been issued somewhat as a matter of course requires to be examined in detail. I, therefore, grant leave to appeal. Security Rs. 1000/-. For the same reasons it will be in the interest of justice that the proceedings in the High Court may be stayed till the disposal of the appeal by this Court. (MBC) (Approved for reporting) Leave granted.

PLJ 1993 SC(AJK) 39 PLJ 1993 SC(AJK) 39 [Appellate Jurisdiction] Present: SARDAR SAID MUHAMMAD KHAN a and BASHARAT AHMAD SHAIKH, J A.J.K. GOVERNMENT, THROUGH ITS CHIEF SECRETARY, and 2 others — Appellants versus Sardar MUHAMMAD RAFIQUE KHAN - Respondent Civil Appeal No.22 of 1992, accepted on 16-11-1992 [On appeal from judgment of Service Tribunal, dated 16-1-1992, passed in Service Appeal No.499 of 1990.] (i) Subsistence Allowance Sub Inspector of Police — Compulsory retirement of — Order of compulsory retirement set aside by Tribunal and case remanded ~ Reinstatement of respondent with order treating his period of absence as leave without pay - Adverse part of order vacated by Service Tribunal - Challenge to -- Under Rule 16.20(2) of Police Rules, D.I.G. is authority who can sanction subsistence allowance in respect of officers upto rank of Inspector when a police officer is acquitted on appeal or as a result of original inquiry ~ Held: Effect of provisions of Rule 16.20 (2) and Fundamental Rule 54 read together, is that it is in discretion | of concerned authority to determine whether acquittal is honourable or not and •j consequently to decide proportion of pay and allowances to be paid to police officer concerned [P. 46] A (ii) Subsistence Allowance Sub Inspector of Police — Compulsory retirement of - Reinstatement ordered treating period of absence as leave without pay — Adverse part of order set , aside by Service Tribunal - Challenge to - It was Deputy Inspector General whowas to decide whether it was honourable acquittal or not - He has taken view that it was not — On previous occasion order was set aside on technical grounds and noton merits — Present acquittal is also not on merits because complainant resiled from his complaint — Held: Order of Deputy Inspector General treating period of \ absence of respondent as leave without pay appears to be correct and cannot be set aside, however it needs to be modified - Appeal accepted and order D.I.G restored j with modification. [Pp.47 & 49] B,C&D PLD 1976 SC 202, PLD 1980 Lahore 1 and PLD 1969 SCI ref. Raja Muhammad Hani/Khan, Advocate for Appellants. , Ch. Muhammad Ibrahim Zia, Advocate for Respondent. ( Date of hearing: 6-6-1992. JUDGMENT Basharat Ahmad Shaikh, J. - The respondent was working as Sub- Inspector in the Police Department when certain charges were framed against him. He was suspended on 5th of September 1985 and a departmental inquiry was held which culminated in an order passed by the Deputy Inspector General of Police on 30th of November 1985 whereby the respondent was awarded the penalty of compulsory retirement after he had been found guilty of some charges. After the necessary formalities, the respondent filed an appeal with the Service Tribunal which was accepted on 26th of March 1989. The Tribunal held that the penalty of compulsory retirement was not covered by rules. Consequently the order of compulsory retirement was set aside. The Tribunal did not go into the merits of the case so far as factual aspects were concerned and as observed in the order of the Service Tribunal recorded on 26-3-1989, it was thought proper to remand the case for fresh proceedings in accordance with law and it was also directed that theappellant should be given an' opportunity for cross-examining the witnesses. In obedience to the order of the Service Tribunal the Deputy Inspector General of Police, on 13th of May 1989, reinstated Muhammad Rafique Khan and ordered a fresh inquiry to be held against him for which purpose an Inquiry Officer was nominated. It was also ordered that the official would continue to remain under suspension and would be entitled to receive the subsistence allowance under rules. Before the Inquiry Officer, Haji Mir Muhammad Khan, the person who had levelled allegations against Muhammad Rafique Khan, himself resiled from his allegations and the Inquiry Officer reported to the Deputy Inspector General of Police that the allegations remained unproved. On 10th of August 1989 the Deputy Inspector General of Police issued an order in which he noted the fact that the complainant had resiled from allegations levelled by him, therefore, the allegation of corruption against Muhammad Rafique had not been proved and a major penalty could not be awarded to him. He observed that it would take him some time to pass a detailed order in the matter. Therefore, he ordered that Muhammad Rafique Khan would stand reinstated from 4th of April, 1989, the date on which he had reported for duty after the order of the Service Tribunal. The Deputy Inspector General of Police also noted in the order that the question as to how the intervening period was to be treated would also be decided when the detailed order is issued. The detailed order was subsequently issued by the Deputy Inspector General of Police on 29th of October 1989. It is this order which was vacated by the Service Tribunal and is sought to be restored through this appeal. In the order of 29th of October 1989 the Deputy Inspector General of Police observed that Muhammad Rafique Khan had been found guilty at the conclusion of the first inquiry and it is on the basis of a technical ground that the Service Tribunal had set aside his punishment and a fresh inquiry had been ordered. It was observed that somehow or the other Muhammad Rafique Khan had been able to win over the star witness against him and, therefore, was able to save himself from punishment. However, it was noted that during the period when he was out of service he had performed no official duty and had also received pension and other benefits for that period. The Deputy Inspector General of Police expressed the view that in these circumstances there was no justification for payment of arrears to Muhammad Rafique Khan and ordered that during the period when he was not on duty from 30th of November 1985 till 4th of April 1989 he would be treated to be on leave without pay. Muhammad Rafique Khan challenged the adverse part of this order .before the Service Tribunal and succeeded in having the order vacated. The service Tribunal in its order under appeal decided the case in light of Section 16 of the Azad Jammu and Kashmir Civil Servants Act 1976 which is to the following effect: "16. Pay.- 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: Provided that when the appointment is made on a current, acting or additional charge basis, his pay shall be fixed in the prescribed manner. Provided further that where a civil servant has been dismissed or removed from service or reduced in rank, he shall, in the event of the order of dismissal, removal from service or reduction in rank being set aside, be entitled to such arrears or pay as the authority setting aside the order may determine."After reproducing this Section the Tribunal analyzed the provision in the following words:- The above rule of law makes it abundantly clear that a civil servant can only be refused his salary if he has received the punishment of dismissal or removal from service or reduction in rank for the charges brought against him and not otherwise. It is, no doubt, that all disciplinary actions against the subordinate members of the Police service are taken under AJK Police Rules but at the same time the provisions of Civil Servants Act are also applicable to all the members of the Police Service. Therefor, it shall have to be accepted that both a civil servant and a Police servant cannot be refused the payment of their salaries for any period during which they are charge-sheeted and placed under inquiry for proving charges brought against them. In the instant case no charge has been proved against the appellant in the second inquiry held against him and as such the payment of salary for the period the appellant remained under suspension and illegal retirement cannot be withheld by way of a penalty. The learned counsel for the parties Raja Muhammad Hanif Khan and Ch. Muhammad Ibrahim Zia were unanimous on the point that Section 16 reproduced above was not applicable at all. It was contended by Raja Muhammad Hanif Khan that Rules 16.20, 16.28 and rule 16.35 of the Police Rules were applicable to the present case. On the other hand Ch. Muhammad Ibrahim Zia contended that none of these rules could be applied to the facts of the present case. He also contended that the order of compulsory retirement was vacated by the Service Tribunal and that no adverse order could be passed in respect of the period when the order of compulsory retirement was in force. It was submitted that sincethe illegal order had been vacated it would be deemed that his client had not been retired and would be entitled to get his full pay for that period. I would first advert to the question as to which law is applicable to the subordinate Police Officers. The definition of 'civil servant' as contained in Section 2 of the Azad Jammu and Kashmir Civil Servants Act is wide enough to include all members of the Police Force. The definition is as follows:- " (b) 'Civil Servant' means a person who is appointed to any Service of the State of Jammu and Kashmir or holds a civil post in service of Azad Jammu and Kashmir employed in connection with the affairs of the State, but does not include,- (i) a person who is on deputation to the service of Azad Jammu and Kashmir in connection with the affairs of the Government, from the Council or the Federation or any Province of Pakistan or authority; (ii) a person who is employed on contract, or on work-charged basis, or who is paid from contingencies; (iii) 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)." Disciplinary matters relating to the civil servants are provided for in Section IS of the Civil Servants Act which runs as follows: - "15. Efficiency and Discipline. - A civil servant shall be liable to such procedure as may be prescribed." In pursuance thereof Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules were framed in 1977. Sub-rule (2) of Rule 1 of the Rules provides that these Rules shall apply to all civil servants except embers of such services and holders of such posts as may be specified by the Government. It has been specified by the Government that the Civil Servants (Efficiency and Discipline) Rules 1977 shall not apply to the members of the subordinate Police Officers upto the rank of Inspector and that members of the subordinate Police Service upto the rank of Inspector shall be governed by the Azad jammu and Kashmir Police Rules. Section 7 of the Police Act deals with matters relating to efficiency and discipline in respect of subordinate ranks of the Police Force. The Section is worded as follows:- "7. Appointment, dismissal etc, of inferior officers. - Subject to such rules as the Government may from time to time make under this Act, the Inspector-General, Deputy Inspect-General, Assistant Inspector-General and District Superintendents of Police may at any time dismiss, suspend or reduce any police-officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same; or may award any one or more of the following punishments to any Police-officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely: fine to any amount not exceeding one month's pay; confinement to quarters for a term not exceeding fifteen days, with or without punishment drill, extra guard, fatigue or other duty; c) deprivation of good-conduct pay; (d) removal from any office of distinction or special emolument;" It is thus clear that so far as matters of discipline are concerned Police Officers of the subordinate ranks are governed by Section 7 of Police Act and the rules made thereunder and in matters of discipline Civil Servants (Efficiency and Discipline) Rules do not apply. However, since the definition of 'civil servant' is wide,- all Police Officers are governed by Civil Servants Act and the rules made thereunder in respect of matters to which the Police Act does not apply. This question came up before Supreme Court of Pakistan in Inspector-General of Police v. Mushtaq Ahmad Warraich (P.L.J 1985 S.C. 264). After a detailed examination of the relevant case law Muhammad Haleem C.J. speaking for the Court observed as follows:- " The Civil Servants Act is an Act of general application and as earlier said it has no constitutional status. Accordingly, it is as much a law as the Police Act of 1861 with the added distinction that it is of general application, while the Police Act is of special application to the officers of the subordinate ranks of the police force. The same is true with the rules. In this view of the matter, as to which would prevail over the other in case of inconsistency is of no difficulty. It should not be forgotten that the Police Act and the rules framed thereunder are such as would be applicable to a disciplined force only while the Civil Servants Act cannot serve this purpose." The following observations occurring at page 280 of the report are also significant:- " Here comparing the two statutes I find that the provisionsof the special law are of a disciplinary character and were enacted with the object to fulfil the requirements of a disciplined force, which purpose cannot be achieved if the provisions of the general law were to be applied to them. The field of operation of special law is, therefor, altogether different and limited to one subject, that is, the police force. Hence, there cannot be any possibility of any collision to attract the doctrine of 'implied repeal'." The conclusion drawn by the court can be found at page 281 in the following words:- " From the above discussion it is clear that special law will prevail over the later law of general application." After reaching the conclusion that the matter has to be resolved within framework of the Police Act and the Rules made thereunder, I now turn to the relevant Police Rules. Rule 16.20 is to the following effect:- "16.20 (1) A police officer under suspension shall be given a subsistence grant. If, as the result of an enquiry, a police officer under suspension is punished, his subsistence grant for the time spent under suspension may not exceed onefourth of his pay (fundamental Rule 53); if he is acquitted either as the result of an original enquiry or on appeal, the assessment of the subsistence grant is governed by fundamental rule 54. (2) The following officers are empowered to make subsistence grants to police officers under suspension :- (a) Deputy Inspectors-General, To all Inspectors and the Assistant Inspectornon-gazetted officers General, Railway Police, sub-ordinate to them. and Superintendent of Police. (b) The Assistant superintendent, ditto Government Railway Police, and (except as regards sergeants) Deputy Superintendents Incharge of Railway Police Sub-division subject to confirmation by the Assistant Inspector-General, Railway Police." This provision shows that when a departmental inquiry is completed and the officer proceeded against is acquitted, the subsistence grant for the time spent under suspension is governed by fundamental rule 54. This rule is to the ollowing effect: - "F.R.54. When the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable; or When a Government servant who has been dismissed, removed or suspended is reinstated the revising or appellate authority may grant to him for the period of his absence from duty: if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension; or if otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe. In a case failing under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so directs." In accordance with sub-rule (2) of Rule 16.20 the Deputy Inspector- General of Police is the authority who can sanction subsistence grant in respect of officers upto the rank of Inspector. Thus the power under Fundamental Rule 54 which refers to the revising or appellate authority shall be deemed to be exercisable by the Deputy Inspector - General, under Fundamental Rule 54 the powers mentioned in clauses (a) and (b) are applicable only when the revising or appellate authority vacates an order of dismissal, removal or suspension but Rule 16.20 makes these powers applicable not only when a police officer is acquitted on appeal but also when he is acquitted as a result of the original inquiry. The effect of the two provisions read together is that it is in the discretion of the concerned authority to determine whether the acquittal is honourable or not and consequently decide the proportion of pay and allowances to be paid to the Police Officer concerned. However, it was contended by Ch. Muhammad Ibrahim Zia that Fundamental Rules are not in force in Azad Jammu and Kashmir and are not law of the land. This argument has no force because it is specifically mentioned in rule 16.20 of the Police Rules that the assessment of the subsistence grant would be governed by Fundamental Rule 54. It is a clear case of referential legislation in which legislation is made by making a reference to a provision of law instead of repeating the phraseology. Rule 16.20 refers to Rule 54 of the Fundamental Rules, therefore, the phraseology of Rule 54 has become a part of Rule 16.20.Coming to the merits of the case, it was contended by the learned counsel for the respondent that in the second inquiry there was nothing on the record which could be read against the respondent because no proceeding took place at all. After due consideration this argument is found to be devoid of any force. It is the Deputy Inspector-General who was to basically decide whether it was honourable acquittal or not and he had taken the view that it was not. It has already been noted that at the previous occasion statements were recorded which fully implicated the respondent. It was on technical grounds and not on merits that the order was set aside at the previous occasion. The present acquittal is also not on merits because the complainant resiled from his complaint. Thus, the view taken by the Deputy Inspector-General appears to be correct and cannot be set aside. In a judgment of the Supreme Court of Pakistan in Government of West Pakistan v. Mian Muhammad Hayat (P.LJ 1976 S.C. 182), it was observed as follows:- "As a result of the dropping of the inquiry against the respondent the allegations of misconduct against him were not inquired into and determined on merits. This cannot possibly be regarded as amountingto a consideration of the allegations of misconduct against the respondent on merits and a finding that they were either false or not proved. The very word 'acquittal' implies that there must have been a trial of the case on merits followed by acquittal of the accused. Under rule 7.3 (a) of the Rules the acquittal should be an 'honourable' one which implied, in my opinion, that the acquittal must follow a finding of the Tribunal concerned that the allegations were false and not merely not proved." The Supreme Court of Pakistan accepted the appeal filed by Government of West Pakistan. The order of the Governor of West Pakistan by which the period of suspension was not treated on duty was revived and the concerned civil servant was allowed the subsistence allowance and compensation allowances already drawn by him during the suspension. The learned counsel for the respondent, Ch. Muhammad Ibrahim Zia, then vehemently contended that the period upto the passing of the order by the Service Tribunal when the compulsory retirement of the respondent was previously vacated could not become subject-matter of an order by the Deputy Inspector- General of Police. While setting aside the order on the previous occasion the Service Tribunal did not pass any order in respect of the past salary relating to the period when the respondent here was kept out of service. That order of the Service Tribunal was in the following terms:- "It will be proper to remand the case back for fresh orders/proceedings in accordance with law. The appellant should also be given an opportunity of cross-examining the witnesses hose evidence has been recorded in his absence if such witnesses are available. As an upshot of the above discussion the appeal is accepted and the orders dated 30-11-1989 and 9-8-1986 are set aside The D.I.G. shall process the case afresh in light of the observations of the Tribunal and the Rules applicable on the subject." It is clear that it was an order of remand. The proceedings taken thereafter were in continuation of the previous proceedings. The respondent had not been acquitted at any previous stage and the inquiry proceedings legally culminated on 10th of August 1989 for the first time. This is the stage visualized by Rule 16.20 of the Police Rules when assessment of the subsistence grant had to be decided because this is the stage when he was either to be acquitted or punished. Thus the order was rightly passed by the Deputy Inspector-General in respect of the whole period. The learned counsel Ch. Muhammad Ibrahim Zia relied on Government of East Pakistan vs. Murzuqullah [P.L.D 1969 S.C. 1] and Abdul Hamid v. Secretary, Rehabilitation and Revenue to the Government of Punjab [P.L.D 1980 Lah.l]. I have gone through both the judgments and find that there is nothing in them which can support the case of the respondent. It has thus crystalised that the approach adopted by the Service Tribunal was not correct and consequently the conclusions it reached are unsustainable. I may also observe that the view expressed by the Service Tribunal that a civil servant who has been compulsorily retired is not covered by the proviso to Section 16, does not seem to be free from doubt because it tentatively appears that the law­maker while using the term "removal from service" used it in a broad sense so as to include 'all persons who have been illegally displaced from their service against their will. However, since this question does not arise in this case in a concrete shape it is left open. However, the operative part of the order passed on 29-10-1989 by the Deputy Inspector-General of Police, which is the subject-matter of this appeal, is not in accordance with law and is also somewhat contradictory. The relevant part (as translated) runs as foliows:-

The official has received all the pensionary benefits in light of the retirement order and has not performed any official duty during the period when he was out of service. Therefore, there is no justification to pay him the arrears of pay. In these circumstances the period of absence from service from 30th of November 1985 to 4th April 1989 is treated as leave without pay." In pursuance of this order the period of absence has to be treated as leave! without pay. The logical conclusion would be that Muhammad Rafique would have to refund the amount of pension which he received from the period when he stood compulsorily retired. One of the reasons recorded by the Deputy Inspector general of Police for his decision to withhold prayer of arrears is that the concerned official had already received full pensionary benefits. It has thus created an anomalous situation. Apart from that, according to rule 54 of the Fundamental Rules when a Government servant is reinstated without being honourably acquittu.! only a proportion of pay and allowances can be refused to him and not the who c pay. If the period during which the respondent was out of service is treated as leave without pay this provision of rule 54 would be clearly violated. The order of the Deputy Inspector-General of Police, therefore, needs to be modified in order to ^ bring it in conformity with law. It is. therefore, ordered that the respondent shall i be entitled to the amount of pension and other allowances which he received between 30-11-1985 to 4-4-1989 and would not be entitled to any other arrears. As an upshot of the foregoing, the appeal is accepted and the order of the Service Tribunal is set aside. Consequently, the order passed by the Deputy Inspector-General of Police shall stand restored with the modification indicated L above. (MBC) (Approved tor reporting) Appeal accepted.

PLJ 1993 SC (AJK) 49 PLJ 1993 SC (AJK) 49 [Appellate jurisdiction] Present: SARDAR SAID MUHAMMAD KHAN, CJ AND BASHARAT AHMAD SHAIKH, J MASUD HAIDER KIANI — Appellant versus A.J.K. GOVERNMENT, THROUGH CHIEF SECRETARY, and 2 others — Respondents Civil Appeal No.50 of 1992, dismissed on 15.4.1993 (approved for reporting on 25.4.1993). [On appeal from judgment of Service Tribunal, dated 25.7.1992, passed in Service Appeal No.565 of 1991.] (i) Practice and Procedure Patwari — Removal from service of -- Challenge to — Whether despite admission of charge by appellant, it was necessary for inquiry officer to examine evidence — Question of — If facts are established, wrong recital of ground of penalty does not create any legal infirmity — Held: If facts are admitted, there is no necessity of examining oral or documentary evidence -- Held further: Charge against appellant that he submitted fictitious reports about progress of his work, stands fully proved due to admission of appellant. (ii) Quantum of punishment Patwari - Removal from service of -- Challenge to — Whether penalty imposed upon appellant was excessive — Question of — It had been stated in charge sheet that a major penalty including penalty of dismissal, may be imposed on appellant — Reduction to lower grade was not possible because appellant having been recruited as Patwari, could not be reduced to any lower post — He had not put in 10 years service and could not be compulsonly retired — Removal from service is a lesser punishment as compared to dismissal from service — Held: Court normally does not interfere in quantum of sentence if sentence is legal -- Appeal dismissed. [P.53]C Mr.Ashfaq Hus.\ain Kiani , Advocate for Appellant. Sardar Muhammad Sadie] Khan. Add!. A.G. for Respondents. Date of hearing: 13.2.1993. JUDGMENT Basharat Ahmad Shaikh, J. -- The appellant, who ua.s a Patwuri, associated with revenue settlement, was removed from >emce bv Settlement Officer for district Muzaffarabad on 27th of January 1991. He tiled an appeal before the Additional Settlement Commissioner which was dismissed on 3rd of July 1991. Therefore, the appellant filed appeal before the Service Tribunal on 21st of July 1991 He was granted leave to appeal by this Court. The facts relevant for the disposal of this appeal are that the Settlement Officer, who was the "authority" as well as the "authorised officer' of the appellant directed the initiation of disciplinary proceedings agairust the appellant and chargesheet/statement of allegations was framed. He appointed Tehsildar Settlement as inquiry officer. It was stated in the charge-sheet statement of allegations that the appellant was appointed at village Chakothi on 2Sth of November 19S" 7 and when the concerned Girdawar conducted an inspect!;:;, ot the uork i>n luin or June jy90 he found that the appellant had carried out the measurement of 1415 survey numbers, out of which he had written the field book of "05 survey numbers but in the report submitted by him he had stated that he had measured 2546 survey numbers till the end of May. It was also stated that Tch.\il<hir Settlement asked his explanation in this respect on the 13th ot June 1990 and in his written reply the appellant admitted his fault and prayed that he may be forgiven. Another allegation was that Tchsildni went twice tor inspection but on both the occasions the appellant was absent. It was also stated that progiess ot (he appellant during the pieceding six months was almost nil and that the instructions s!Jven to him from .time to time by the Tehsildar had no effect on him. It was stated in the charge-sheet that the appellant appeared to be guilty of absence from duty, failure to perform official work/disobedience, unsatisfactory performance and showing fictitious progress. The appellant was required to show cause why any of major penalties mentioned in rule 4 of the AJ&K Civil Servants (Efficiency and Discipline) Rules 1977. including the penalty of dismissal from service, may not be imposed on him. The appellant was directed to furnish his explanation within 15 days with the Inquiry Officer. In the explanation furnished by the appellant he admitted that he had submitted fictitious progress reports but pleaded that he had done so under the directions of the various Tehsildars who had held the relevant charge from time to time. It was also stated by him that in the previous explanation he had admitted his fault and had prayed for forgiveness due to the fact that he did not want to criticise his superiors. He explained that Tehsildar Settlement came to Chakothi Bazar twice and declared him absent while in fact he, was engaged in the performance of his duty at a distance of about 2 miles from Chakothi. The Inquiry Officer in his report found the Patwari guilts and stated that after receiving the explanation of the appellant he personally checked the relevant record and also heard the appellant. The Tehsildar noted that the appellant had admitted his fault and had pleaded forgiveness-on the ground that the Tehsildars had asked him to file fictitious reports. He passed certain observations about the Girdawar also and suggested that his explanation should also be called. The report of the Inquiry Officer was accepted by the Settlement Officer and the appellant's removal from service was ordered. It was contended by the learned counsel for the appellant. Mr. Ashfaque Hussain Kiani. that it was mentioned in the order by which Inquiry Officer was appointed and the charge-sheet was framed against the appellant that the order had been passed under rule 6(5) of the AJ&K Civil Servants (Efficiency and Discipline) Rules 1977 and that it is thus clear that a detailed inquiry was intended to be held but no inquiry was held in accordance with the prescribed procedure. He drew our attention to sub-rule (5) of rule 7 of the aforesaid rules wherein it is laid down that if the authorised officer considers that an inquiry is necessary then he shall appoint an inquiry officer or an inquiry committee. Rule 7 lays down procedure which has to be observed by the inquiry officer/inquiry committee. It refers to examination of oral and documentary evidence in support of the charge and also gives right of cross-examination. In light of these provisions, Mr. Ashfaque Hussain Kiani vehemently contended that the Inquiry Officer failed to follow these mandatory provisions and the report framed by him against the appellant was thus vitiated. The argument advanced by the learned counsel tor the appellant fails to take note of the fact that the purpose of holding an inquiry in accordance with the procedure laid down in rule 7 mentioned above is to find out the correctness or otherwise of a question of fact buf if there is no dispute about facts the also dependant on the fact whether a witness is examined or not. If no witness is examined the question of cross-examining him does not arise. The learned counsel for the appellant contended that even if it may be I assumed that the appellant had admitted that he submitted fictitious reports about the progress of his work even then there is no proof in support of the other \ allegations which have been found correct. After anxious consideration we find that j this argument has also no force. A perusal of the charge-sheet shows that it is split up in two parts. In the first part there are facts which have been alleged against the appellant while the second part consists of the conclusions which follow from these facts. In the first part apart from the allegation about filing of fictitious progress report it was mentioned that the Tehsildar wanted to check up the record but when , he visited the spot twice the appellant was not found present on the "site" and thus the record could not be produced before the Tehsildar. It is not stated that he was found absent from "duty" and it is not a charge but an incidental narration about non-availability of record. Second part does not relate to facts but relates to the j grounds of penalty. If the facts are established, wrong recital of ground of penalty does not create any legal infirmity. The charge against the appellant that he submitted fictitious reports about the progress of his work stands fully proved due to the admission of the appellant. On behalf of the appellant it was also submitted that the fictitious progress reports had been submitted by the appellant under the directions of the superiors and thus the appellant was not guilty of any misconduct. It was for the appellant to prove the truth of his defence but he has not been able to do so. Even otherwise this defence is not legally tenable. No civil servant is supposed to follow the illegal orders of the superiors particularly if such orders are in the nature of fraud and interpolation. It was lastly contended by the learned counsel for the appellant that the i penalty imposed upon the appellant is excessive. This Court normally does not! interfere in the quantum of sentence if the sentence is legal. The competent i authority found that the appellant deserved the penalty of removal from service and ! we do not find that this penalty is in any way in contravention of law. It had been i stated in the charge-sheet that a major penalty, including the penalty of dismissal, | may be imposed on the appellant. Out of the major penalties, reduction to a lower' grade of post was not possible because the appellant was recruited as a Patwari and j could not be reduced to any lower post. The appellant has not put in ten years service'and therefore could not be compulsorily retired. The remaining two major penalties were removal from service and dismissal from service. It was found proper not to impose the penalty of dismissal and removal from service was ordered which does not disqualify from future employment. This is a lesser punishment as compared to dismissal from ervice. Before parting with the case we may point out that an objection was raised in the written statement filed before the Service Tribunal that the appeal was timebarred. This objection has been overruled by the Service Tribunal. This point was also argued before us at some length. It was contended by Sardar Muhammad Sadiq Khan, the learned Additional Advocate-General appearing for the Government, that appeal before the Service Tribunal could be filed within 120 days calculated from the date when the departmental appeal was filed on 26th of February 1991 hut it was filed on 27th of July 1991. It means that 151 days were consumed in filing the appeal while the appellant should have tiled it within 120 days. As laid down in Azad Government vs. Sardar Muhammad Safdar Khan [Civil Appeal No.21 of 1992 decided on 27th July 1992] the break up of this period is thirty days provided in the main provision of Section 4 of the Service Tribunals Act and 90 days period provided in proviso of the aforesaid section. However, Mr. Ashfaque Hussain Kiani vehemently contended that limitation of 120 days is applicable to the cases in which a civil servant does not wait for the decision of his appeal or representation. In case the civil servant chooses to wait for the decision of the appeal etc. he can file appeal within thirty days from such decision. He contended that the appeal filed by the appellant was rejected on 3rd of July 1991 by the Additional Commissioner Settlement and the appeal before the Service Tribunal was filed on 2Lst of July. This argument was met by Sardar Muhammad Sadiq Khan by submitting that there is no provision in Section 4 of the Ser\ice Tribunal Act that a civil servant may wait for the disposal of appeal, review or representation to a departmental authority. According to the learned Additional Advocate-General all which provision (a) of section 4 lays down is that a civil servant cannot file an appeal before the Service Tribunal unless he has filed appeal, review or representation to a departmental authority, if provided, and a period of 90 days has elapsed. A perusal of section 4 as a whole lends, prima facie, support to this contention. Section 4 provides that a civil servant aggrieved by any final order, whether original or appellate, may prefer appeal to the Service Tribunal. It may, therefore, follow that intention of the law-maker was that if a civil servant is aggrieved by any original order he can file an appeal against it but if the original order is not against him and appellate order is to his disadvantage he may file an appeal against the appellate order. However, it is not necessary to decide this point in the present appeal which is being dismissed on merits. Since the Tribunal has not decided this point we would like to decide this point, which is of public importance, in any other case preferably when the view of the Service Tribunal is before us. The upshot of the foregoing analysis is that the appeal has no merit and we order its dismissal. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC (AJK) 55 PLJ 1993 SC (AJK) 55 [Appellate Jurisdiction] Present: SARDAR SAID MUHAMMAD KHAN, CJ, and BASHARAT AHMAD SHAIKH, J. Syed MANZOOR HUSSAIN GILANI — Appellant versus SAIN MULLAH, ADVOCATE, and 2 others — Respondents Civil Apeal No.46 of 1992, accepted on 13.1.1993 (approved for reporting on 24.1.1993) [On appeal from order of High Court, dated 29.7.1992, passed in Writ Petition No.79of 1992] (i) A.J.K. Interim Constitution Act, 1974 S.2 -- Appointment of appellant as Judge of High Court — Writ of quo warranto against — Admission to regular hearing of — Challenge to — Question as to whether appellant is a State .subject or not, is to be determined in view of Notification No.I-L/84 dated 20.4.1927 - No law has been cited that appellant ceased to be a State subject because he had come to Azad Kashmir on Indian Passport nor it is relevant for resolving questions involved in this appeal — Held: Appellant did not seek enrolment as a pleader or an advocate on basis of being a refugee but he sought same as State subject. [P.60JD (ii) Interlocutory order Quo warranto -- Writ of -- Admission to regular hearing of— Challenge to - - Whether appeal is competent — Question of — It was observed in an un-reported case that sub-section (12) of Section 42 of AJK Interim Constitution Act, 1974 does not envisage that an appeal was competent only against a final order — It was further observed that word "order' was not qualified by word "final", thus, in proper cases, even an interlocutory order can be challenged through an appeal to Supreme Court — Held: Preliminary objection that appeal is incompetent having been filed against an interlocutory order, is repelled. [P.58] A C.A. 13 of 1988, decided on 15.11.1988/W. (iii) Judge Appointment of appellant as Judge of High Court — Writ of quo warranto against — Admission of writ petition for regular hearing — Challenge to — Contention that post was created on 30.5.1991 while appellant was appointed as Judge on 5.5.1991 before creation of post which was violative of law -- Primary object of notification dated 30.5.1991 was to make budgetary provisions for Judge and his staff and not to create post of Judge - No law has been cited that President or Government are empowered to create post of a Judge in High Court -- Held: Order of Government making budgetory provisions tor Judge and his staff would not imply that post of Judge was created by said order. [Pp.58£591B&C (iv) Laches Appointment of appellant as Judge of High Court — Writ of quo warranto against — Admission to regular hearing of — Challenge to -- Whether principle of laches is relevant in writ of quo warranto — Question of — Respondent No.l did not challenge either enrolment of appellant as a pleader or advocate or his appointment as Advocate General previously and kept mum for years together -- He failed to challenge his appointment as Judge for one year and two months — He filed writ of quo warranto against appellant due to initiation of contempt of court proceedings against him at instance of appellant and not for serving cause of law or in public interest — Held: It is settled principle of law that in absence of bonafides, a writ of quo warranto must be refused on ground of delay in filing same — Held further: Question of laches in quo warranto is relevant to test bonafides of relator.[Pp.61 & 62 ]E PLD 1991 Lahore 420, PLD 1969 SC 42, PLD 1963 SC 203 and AIR 1952 Orissa 359 rel. (v) Quo Warranto Appointment of appellant as Judge of High Court -- Writ of quo warranto against — Admission to regular hearing of -- Challenge to — It is well settled principle of law that superior courts insist that in case of writ of quo warranto, court should closely scrutinize averments made in writ petition before issuing notice and it should not be issued as a matter of routine — Held: High Court was not justified in issuing notice in this case — Held further: It is a case in which interference at preliminary stage is fully |ustitied — Appeal accepted and writ petition dismissed. [Pp.64 &65] H,J,K,L,£M PLD 1969 SC 42, PLD 1987 SC (AJK)41 and Civil PLA No.90 of 1991 rel. (vi) Quo Warranto Appointment of appellant as Judge of High Court -- Writ of quo warranto against — Admission to regular hearing of — Challenge to — Whether legality of enrolment as a pleader or an advocate can be questioned in writ of quo warranto — Question of — Questions regarding legality of enrolment of appellant as pleader and advocate might have been subject of a writ of certioruri or mandamus or some other appropriate proceedings at proper time — Held: Question of legality of enrolment of appellant as pleader or advocate does not fall within ambit of proceedings of quo warranto as an advocate on roll of High Court, cannot be regarded to be holder of public office. [Pp.63 & 64|F&G AIR 1987 Karachi 140 and Corpus Juris Secondum vol. 74, Note 45(c) at page 264 rel. Mis. Ghulam Mustafa Mughal, Shiraz Kiani, Muhammad Fund Awan and Muhammad Bashir, Advocates for Appellant. Sh.Abdul Aziz, Advocate for Respondent No.l. Mr. Tabassum A/tab Alvi, Advocate and Mr. Muhammad Sadiq Khan, Addl. A.G. for Respondent No.2. Mr. Mansoor Ahmad, Advocate for Respondent No.3. Date of hearing: 13/12.1992. JUDGMENT Sardar Said Muhammad Khan, C.J.-- This appeal has been directed against the order of the High court dated 29.7.1992, whereby the writ petition filed by respondent No. 1 was admitted tor regular heraing by the High Court. The brief facts of the case are that the appellant was appointed as Judge of the High Court on 5th May 1991 and has been performing functions as such since 7.5.1991. A writ petition was filed by respondent No.l on 28.7.1992 challenging his appointment as Judge of the High Court of Judicature of Azad Jammu and Kashmir (hereinafter shall be called the High Court) alleging that the appellant, herein was a resident of Indian held Kashmir and temporarily visited Azad Kashmir on Indian Passport; he was enrolled as a pleader of the High Court on 30.7.1976 and as an advocate on 4.6.1977. It was averred that he, being a foreigner, was on temporary visit to Azad Kashmir as an Indian national and as such he was not entitled to be enrolled as a pleader or an advocate of the High Court. It was also alleged that subsequently the appellant was permitted to reside in Azad Kahsmir on the condition that he would not claim any right as a refugee from Indian held Kashmir and. thus, he was not entitled to be appointed as Judge. It was further the case of the respondent that under the relevant statutory rules, the appellant did not satisfy the necessary conditions for the enrolment as a pleader or an advocate of High Court but despite that he was enrolled as such. It was also averred in the petition that the appointment of the appellant as Advocate-General on the basis of the said enrolments was also void and subsequently his elevation to the Bench on 5.5.1991 was also illegal, inter alia, on the grounds that the post of High Court's Judge was created on 30.5.1991 whereas he was appointed as Judge on 5.5.1991. Thus, it was prayed that the appellant should be called upon to show as to under what authority of law he held the office as Judge of the High Court. ' The High Court, after considering the averments made in the writ petition, admitted the same for regular hearing.We have heard the arguments and perused the tile. A preliminary objection has been raised by Sh. Abdul Aziz, Advocate, the counsel for respondent No.l, that the order challenged in the appeal is not a final order and, as such, the appeal is not competent. He has contended that an appeal to the Supreme Court lies only against a 'final order' and not against a provisional or an interlocutory order. In reply, it was contended by the learned counsel for the appellant that it is a long standing practice of this Court that in proper cases appeals are entertained even against provisional and interlocutory orders. A number of cases of this Courtwere cited in support of the above contention. We have given due consideration on the preliminary point and we are of the 'opinion that the objection raised was dealt with by this Court in some detail in an 'unreported case entitled Qazi Bashir Ahmad v. Am/ad All (Civil Appeal No. 13 of 1988, decided on 15.11.1988,) wherein after discussing various authorities from Pakistan and Indian jurisdiction, it was held that generally the superior Courts of sub-continent are slow to grant petition for leave to appeal against an interlocutory order yet there is no bar to allow the petition for leave to appeal on the ground that A an order is not 'final' and, thus, an appeal was not competent against the same. It was observed that sub-section (12) of Section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 does not envisage that an appeal was competent only against a 'final' order. It was further observed that the word 'order' in the iaforesaid provision was not qualified by the word 'final' and, thus, in proper cases !even an interlocutory order can be challenged through an appeal to this Court. jThus, in view of the aforesaid state of law, the preliminary objection that the iappeal is incompetent because the same was tiled against an interlocutory order is thereby repelled. Coming to the merits of the case, the learned counsel for the appellant has 'argued that the averments made in the writ petition that as the post of the Judge in the High Court was created on 30.5.1991, the appointment of the appellant as Judge of the High Court before the creation of the post , on 5.5.1991, was violative of law and as such advice of the Azad Jammu and Kashmir Council should have been obtained afresh after the creation of the post, has no legal merits. He has contended that it is not the case of the contesting respondent that there i existed no vacancy in the High Court when the Council tendered the advice, rather the case is that as creation of the post was made on 30-5-1991, the previous advice -of the Council was not according to constitutional provision. The learned counsel ; for the appellant has argued that whether there existed any vacancy of the Judge in ;the High Court is to be ascertained in the light of the Courts and Laws Code 1949 ;and keeping in view the number of Judges who held office as Judges at the relevant ;time. The post of the Judge of the High Court cannot be created by the President jor the Prime Minister through an executive order because no such powers vest in them by virtue of Constitution or subordinate legislation, i.e., the Courts and Laws Code 1949. The primary object of the notification dated 30-5-1991, whereby the post of a Judge in the High Court, is alleged to have been "created", was to make budgetory provisions for the Judge of the High Court and his staff and not to create the post of a Judge. The mere fact that budgetory provisions were made for the Judge on 30-5-1991, it cannot be interpreted to mean that no vacancy of Judge of the High Court existed on 5-5-1991 when the appellant was appointed as Judge of the High Court or the post of the Judge of the High Court would be deemed to have been created on the date when the budgetory provisions were made. Thus it was contended that the argument that as the budgetory provisions were made subsequent to the appointment of the appellant as Judge, the appointment was violative of lav, or fresh advice of the Council was necessary is a prevarication and has no substance. In reply, the learned counsel for the contesting respondent has contended that in the relevant notification the word 'creation' has been used and it would be deemed that the post had been created on 30-5-1991. We have given due consideration to the arguments on the point and would like to note that no law has been cited that the President or the Government are empowered under the Courts and Laws Code or the Azad Jammu and Kashmir Interim Constitution Act to 'create' the post of a Judge in the High Court. Even otherwise, sometimes the budgetory provisions for a newly appointed Judge are made after his appointment and that is never interpreted to mean that the order of the Government making budgetory provisions for the Judge and his staff would imply that the post of the Judge was created by the said order. Thus, the argument advanced by the learned counsel 'for the appellant pravails; the aforesaid ground should not have weighed with the High Court while admitting the writ petition for regular hearing. Next, it has been argued by the counsel for the respondent that as the appellant was an Indian national, he was not entitled to be enrolled as a pleader or an advocate of the High Court. It has been argued that the relevant Legal Practitioners Rules envisage that a 'state subject' is entitled to be enrolled as a pleader or an advocate subject to the other conditions laid down therein. It has been argued that the question of appellant being a State subject is not to be resolved in view of the Foreigners Act of 1946 rather it is to be determined in view of the relevant law. Under Section 2 of the Azad Jammu and Kashmir Interim Constitution Act 1974, the expression 'State subject' has been defined as under:- " 'State Subject' means a person for the time being residing in Azad ' Jammu and Kashmir or Pakistan who is a 'State Subject' as defined in the late Government of the State of Jammu and Kashmir Notification No.I-L/84, dated the 20th April, 1927, as amended from time to time;" It is evident from the above constitutional provision that in case of appellant, the question as to whether he is a State subject or not is to be determined in view of Notification No.I-L/84, dated the 20th April, 1927. The status of the jappeilant as State subject .has not been disputed even by the relator in the |memorandum of writ petition. No law has been cited that the appellant ceased to jbe a State subject because he had come to Azad Kashmir on Indian passport. The jrelevant fact for resolving the points involved is as to whether the appellant was a jState subject and not the question of his nationality in view of the provisions Icontained in the Foreigners Act or any other law for the time being in force. It is ;not even the case of the respondent before this Court that the appellant is not a jState subject within the meaning of the Notification No.l-L/84 dated 20th April, 1927. Thus, the fact that the appellant came to Azad Kashmir on Indian passport is not relevant for resolving the questions involved in the present appeal. Besides, the contention that when the appellant was permitted to reside in Azad Kashmir, he undertook not to claim any right as refugee is also irrelevant because he did not seek enrolment as a pleader or an advocate on the basis of being a refugee but as a State subject, as required under the relevant rules. It has been also argued that it has been recorded by the High Court in the impugned order that it had been also alleged in thj writ petition that the relevant documents were not tiled alongwith the application for tr.e enrolment as pleader but no such averments find place in the memorandum of the wirt petition. Thus, according to the learned counsel, the High Court did not apply mind to the points raised in the writ petition and proceeded on wrong assumption of the facts. The perusal of the contents of the writ petition shows that it has not been specifically averred in the writ petition that the relevant documents were not filed along with the application for enrolment as pleader. The argument is valid to the extent that some facts have been assumed by the High Court to have been alleged despite the fact that the same find no place in the memorandum of writ peition. It shows that the impugned order was passed without gi\ ing due consideration to the points raised and the matter was dealt casually. The learned counsel for the appellant has further submitted that the appellant was enrolled as pleader in 1976-and as advocate in 1977; he was appointed as Advocate-General in 1986 and was elevated to the Bench on 5-5-1991. Thus, the validity of his enrolment as a pleader and advocate has been challenged after about 13/14 years of his enrolment as a pleader and advocate; and after five years of his appointment as Advocate-General. Similarly, his appointment as Judge has been assailed, after one year and two months of the relevant appointment order. Some authorities were also cited in support of the contention that the writ petition entailed dismissal on this sole ground. In reply, it has been argued that the principle of laches is not attracted in case of a writ of quo warranto. It has been also contended that even otherwise the question of laches is to be considered in view of the facts of each case, in some cases delay of few months is not condoned while in other cases the delay of years is ignored. It has been maintained that even if the delay is regarded as relevant that may be condoned in the circumstances of the case. It may be observed that the principle of laches is not strictly applicable to a , case of quo warranto but it is definitely a relevant consideration in case of a quo ; warranto if mala fide is pleaded in defence. In the present case it has been argued r on behalf of the appellant that the relator-respondent who was a practising advocate t of the High Court did not challenge the enrolment of the appellant as pleader, ; advocate or his appointments as Advocate-General and the Judge of the High Court , earlier and he came with the present writ petition only to wreak vengeance and not j with bonafide intention of upholding the majesty of law or in the public interest. It s was argued that the question of laches is very relevant in this case because it is on ; the record that the present petition was filed only when the appellant, herein, as j Judge of the High Court, moved the Chief Justice of the High Court to initiate the j Contempt of Court proceedings against the contesting respondent in a case. A t notice of the contempt of Court was issued by the Chief Justice at the instance of r the appellant who as Judge of the High Court was seized with the matter in which j contempt was alleged to have been committed. Thus, for judging the 'hona fides' } of contesting respondent, the question of laches is not only relevant but also important. The writ petition entailed dismissal on the sole ground of mala fide irrespective of the merits of the writ petition. A reference was made to the following authorities in support of the contention:- 1. Dr. Kamal Huxxain v. Muhammad Sirajul Islam (PLD 1969 S.C. 42); and 2. S\ed AH Razn asm! Ahidi \GhuUnn Ishaq Khan, President of Pakistan (PLD 1991 Lah. 420) We have given due consideration to the matter and in view of the principle i laid down in the above authorities, particularly the case reported as Syed All Raza AsadAbidi v. Ghulam khaq Khan, President of Pakistan (PLD 1991 Lah.420), it is evident that in a case of quo warranto the question of laches is relevant to test the bona fides of the relator. In the present case there is no explanation whatsoever as to why the respondent did not challenge either the enrolment of the appellant as a pleader, and advocate or his appointment as Advocate-General previously and kept mum for about 13/14 years and 5 years respectively in each case. He also failed to challenge the appointment of the appellant as Judge of the High Court for one year and two months. He filed the writ petition when the notice of contempt of Court was served upon him at the instance of the appellant. We are of the view that the contesting respondent filed the present writ petition due to the aforesaid' incident, i.e. the initiation of the contempt of Court proceedings against him and not for serving the cause of law or in the public interest, especially so because no under which the same was made, the competency of authority which made the appointment and that the same was made in accordance with law directly related to the appointment in question. The legality of the enrolment of the appellant as a pleader or an advocate does not fall within the ambit of proceedings of quo warranto. The questions regading the legality of the enrolment of the appellant as pleader and advocate might have been made subject of a writ of certiorari or mandamus or some other appropriate proceedings, had the same been agitated at the proper time but it cannot be made subject of a writ of quo warranto. We are supported in our view in case reported as K.J.Joseph V. Hon'able Justice K'.Sukumaran (AIR 1987 Kerala 140), wherein it was observed that a writ of quo warranto postulates an enquiry as to under what authority, the person in question is holding his office, franchise or liberty as the case may be. Since writ of quo warranto is a somewhat drastic remedy the courts in administering it should proceed with anxious deliberation and with utmost caution. In exercising the discretion, the Court should consider all the circumstances of the case, including lapse of time, and circumstances which would establish laches, acquiescence or estoppel, and whether the public interest will be served. The Court should decline to entertain a petition to grant a quo warranto writ where it would be vexatious to do so. It was further observed as under: "1 feel that in a writ of quo warranto, this court has no jurisdiction or power to examine and explore the mind of the appointing authority. What all facts entered the mind of the appointing authority in appointing a particular person seems to he not a relevant fact to be considered in a proceeding tor a writ of quo warranto. This is so because the mam question that is before the court for determination is the title of the person who holds the office. It is a case of an . examination whether the first respondent concerned is a usurper. This court's function is circumscribed to a query to the person in question 'what is your authority to hold the office'? Of course, he can be asked, whether the authority or the warrant he produced is by the person who is authorised to make an appointment to the office which he holds. The petitioner has no case that the first respondent is holding the office without a warrant properly signed and issued by the President of India and that the President has no power to appoint the first respondent as a Judge of this Court." In Corpus Juris Secundum, Vol.74, after making reference to various authorities in Note 45(c) at page 264, it has been stated as follows:- "In a quo warranto proceeding to test the right to an office, the scope of inquiry and decision is ordinarily limited to the validity of defendant's title to the office; collateral matters or matters outside the scope of the action will not be investigated or adjudicated." The appllant cannot be called upon to show in a writ of quo warrunto that junder what authority of law he was enrolled as a pleader or an advocate of the High Court. The writ of quo warranto lies in case of usurper of a public office and' needless to say, an advocate on the roll of the High Court cannot be regarded to be |a holder of a public office. It has been vehemently argued on behalf of the appellant that notice to the appellant, herein, was issued as a matter of routine. The High Court was empowered to send for the record pertaining to the appointment of the appellant as Judge of the High Court and the record relating to collateral matters under sub-rule (3) of Rule 33 of the High Court Procedure Rules, 1984 (hereinafter to be referred as the High Court Rules) but it was not done. The notice was issued casually and is not according to law because in a case of writ of quo warranto, the notice under law must be issued in terms that respondent should show under what authority of law he was holding the particular office. But in the instant case the appellant was merely called upon to file written statement etc. Besides, the allegation that the appellant was a foreigner and was not entitled to be appointed as Judge of the High Court does not find any mention in the memorandum of writ petition; the allegation was in context ot his enrolment as pleader and advocate. Even otherwise, the relevant rules do not contain the terms 'foreigner' or 'national' in context of enrolment of a person as a pleader or an advocate of the High Court rather the expression 'state subject' has been used therein. It may be stated that it is well settled principle of law that the superior Courts insist that in case of writ of quo warranto which is purely a discretionary | matter, the Court should closely scrutinise the averments made in the writ petition Ibefore issuing notice and it should not be issued as a matter of routine. We find i support in cases reported as Dr. Kamal Hussain v. Muhammad Sirajul Islam (PLD 1969 S.C. 42) and Ch.Muhammad Anwar v. Ch.Muhammad Rashid [PLJ 1987 I S.C. (AJK) 34]. In case titled Kh. Noor ul Amin v. Sardar Muhammad Abdul Qayyurn Khan (Civil P.L.A. No.90 of 1991), this Court had the occasion to jexamine the principles which should be kept in mind while issuing a rule in a writ |of quo warranto. It was observed that a rule nisi cannot be issued as a routine. The (following observations are relevant: - "If initially, he makes out his prima facie case, the burden of proof would shift to the opposite side but if the material facts are not pleaded by the petitioner on which he bases his claim or the same are not sufficient enough to make a prima facie case in favour of the petitioner, it cannot be said that a rule nisi can be issued as a matter of routine. The non-petitioner would be called upon to show that he was holding the office under what authority of law would arise onlyif, in the first instance, the petitioner makes out a prima facie case that he was not so holding the office. The two cases from- Indian jurisdiction cited by Kh. Noor ul Amin do not lay down any different rule:- The view of the High Court might have been different if before admitting | the Writ Petition for heraing, a notice under sub-rule (3) of rule 33 of the High Court Rules would have been issued to the appellant and an opportunity had been afforded to the appellant as to why the writ petition should not be admited for regular hearing. Keeping in view the nature of the functions of a Judge of a superior Court, it is all the more necessary to adhere to the spirit of the aforesaid rule in case of a writ of qua-warranto. Needless to say, in our society if notices of quo warranto are issued against Judges of a superior Courts as a matter of routine, it is likely to encourage the vexatious proceedings against the Judges so as to harass-, them rather than seeking redressal of genuine grievances. In light of the above conclusions, we are of the opinion that the High Court was not justified in issuing the notice in the case.We find no force in the contention of learned counsel for respondent No. 1, Sh.Abdul Aziz, that the High Court should be allowed to decide the case and the points raised in the case may be attended to if and when an appeal is brought to this Court. We had the occasion to 'observe in an unreported case entitled Sardar Sikandar Hayat Khan V. Syed Ghulani Mujtahu Bokhari (Civii Misc. Nos.7 and 8 of 1990, decided on 15.5.1990) that:-"The High Court is a Court created by the Constitution and it is primarily the High Court which is clothed with the powers of issuing wnt petitions. It is only after the High Court has become functus officio that normally a case is called up by this Court. But it cannot be denied that this Court has the power to interfere at an earlier stage and pass any suitable order where a case is made out. If there was any doubt on this point it has been set at rest by a judgment of this Court in a case titled Qazi Bashir Ahmad v.. Amjad AH (Civil Appeal No. 13 of 1988)." In the light of the conclusions reached by us, we are convinced that it is a case in which interference at the preliminary stage is fully justified. In the light of the foregoing, we accept the appeal and order that the writl petition titled 'Sain Mullah . Azad Government and others' stands dismissed with' no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC (AJK) 66 PLJ 1993 SC (AJK) 66 [Appellate Jurisdiction] /Yes-e/tf: SARDAR SAID MUHAMMAD KHAN, CJ AND BASHARAT AHMAD SHAIKH ,J MUHAMMAD BASHIR KHAN and another -- Appellant versus INSPECTOR GENERAL OF POLICE, AJK GOVERNMENT and 4 others — Respondents Civil Appeal No. 44 of 1992, dismissed on 2.3. 1993 (approved for reporting on ap 5.4. 1993). [On appeal from judgment of Service Tribunal, dated 27.7.1992, passed in Service " Appeal No. 467 of 1989.] Appeal Sub Inspectors of Police — Non-consideration for promotion as Inspectors -- la Challenge to — Whether appeal before Service Tribunal was maintainable — la Question of — View taken by Tribunal is that no appeal lies where fitness of a person for promotion has not been examined at all -- Police officers are civil af servants within meaning of Civil Servants Act, 1975 and this Act is applicable to them in matters not covered by Police Act -- Proviso to sub-section (2) of Civil al Servants Act, 1975 is not applicable to this case as suitability of appellants had not th been determined at all and their claim is that they should have been considered for ei selection — Appellants could file representation against rder impugned by them e.t before Tribunal - Held: Appellants having not availed of departmental remedy, were debarred from filing appeal before Service Tribunal — Appeal dismissed. | [Pp. 67 & 69] A,B,C&D PLJ 1993 SC(AJK) 39 and PLD 1990 SC 612 rel. Sardar Rafique Mahmood Khan, Advocate for Appellants. Mr. Sardar Khan, Advocate General for Respondents 1 & 2. 'Raja Muhammad Hani/ Khan, Advocate tor Respondents 3 to 5. 5 Dateof hearing: 12. 12.1992. JUDGMENT Basharat Ahmad Shaikh, J. — Through this appeal, by leave of the Court, ,. two Sub-Inspectors of Police, Muhammad Bashir Khan and Muhammad Rafique Khan, seek reversal of the order passed by the Service Tribunal on 27th ot July 1992, whereby two separate appeals filed by them before the aforesaid Tribunal Were dismissed. In the appeals before the Service Tribunal the order of promotion of respondents Khurshid-ul-Hassan and Abdul Rauf Khan was sought to be vacated and it had also been prayed that the aforesaid appellants may be declared to have been retrospectively promoted as Inspectors of Police. The appeals were dismissed by the Service Tribunal without going nto the merits on a technical ground that the appellant had not availed the departmental remedy through appeal or representation before filing appeal before the Tribunal. 2. The Tribunal repelled the objection that the appeals were not maintainable in light of proviso (b) of sub-section (1) of Section 4 of the Service Tribunals Act 1975 which lays down that no appeal lies to a Tribunal against an rder or decision of a departmental authority determining the fitness or otherwise of a person to be promoted to a higher grade. The Tribunal held that if a civil servant feels aggrieved that he was not considered for promotion although e had a right for being so considered on the ground that he was duly qualified for promotion he could file an ppeal before the Sen-ice Tribunal. The Trib.unal expressed the view that although no appeal lies to the Tribunal.against an rder determining the fitness of a civil servant, an appeal lies against an order of promotion where the civil servant feels aggrieved that he was not considered. We may usefully reproduce the view taken by the Tribunal: "....But the law so far developed on this point is that appeals against the orders of promotion made by a Departmental Auythority by which another civil servant feels himself aggrieved for not being considered for promotion alongwith the promotees are also admitted in this Tribunal for regular hearing if such appeals are found (not) incompetent otherwise. As is provided in Civil Servants Act, 1976 promotion is also one of the terms and conditions of service of a civil servant and breach thereof is undoubtedly an infringement of his right to be considered for promotion to the next higher post and grade. Hence, a civil servant who is duly qualified for his promotion to the next higher post and grade at the event of not being considered for promotion by his Departmental Authority must firstly avail of his departmental remedy before the next higher Authority failing which his appeal at this forum will be meriting dismissal for being incompetent." 3. The view taken by the Service Tribunal reflects the settled law that the bar | contained in provisio (b) of Section 4(1) of the Service Tribunals Act that no appeal lies to the Service Tribunal against an order or decision determining the fitness or otherwise of a person to be promoted to a higher grade applies only to a case in which a decision or order has been passed to the effect that a particular person is not fit for omotion. It does not extend to a case where fitness has not been examined at all. It is.therefore that Courts have taken the consistent view that appeal lies in such a situation. In this respect it would be useful to reproduce a portion of judgment of Supreme Court of Pakistan in Mrs. M.N. Arshad vs. fyfiss Naeema Khan [PLD 1990 S.C. 612] wherein this provision was analysed. Speaking for the Court Ajmal Mian J. observed in paragraph 8 of the report: "8. It was contended that in view of clause (b) of subsection (1) of Section 4 of the Service Tribunals Act, 1973, no appeal lies against an order or decision of a departmental authority determining the fitness or otherwise of a person o be appointed to or hold a particular I U ] post or to be promoted to a higher post or grade. We may observe H that in the present case, the Tribunal has not held that respondent ' nt No.l is entitled to hold or to be promoted to a particular post. The la Tribunal has recorded findings of facts to the effect that the Departmental Promotion Committee was not constituted in accordance with the Rules and, therefore, the decision taken by it ' was not legal and that respondent No.l 's case was not properly el considered. In our view, the Tribunal has jurisdiction to go into the J above questions. We may observe that the Tribunal cannot decide the question of fitness referred to in the above provision of the Service ai Tribunals Act, but it has jurisdicion, to examine the questions, whether the Departmental Promotion Committee was onstituted in accordance with the relevant rules and whether the cases of the civil servants concerned were properly considered in terms thereof". 4. It was contended on behalf of the appellants by Sardar Rafique Mahmood Khan that no departmental remedy was available to the appellants and, therefore, the Service Tribunal was in error in dismissing the appeal filed by the appellants on the ground that they failed to avail the remedy through appeal or representation before the next higher authority. It was submitted by the learned counsel that the Service Tribunal did not point out the remedy which was available to the ppellants. On the other hand the leraned counsel for the private respondents, Raja Muhammad Hanif Khan, fully supported the view taken by the Service Tribunal and contended that there is a clear bar that an appeal does not lie against an order by which the fitness or otherwise of a person is determined and if by any process of interpretation an appeal can be filed in such a matter then a representation is s equally competent. The learned Advocate-General and Raja Muhammad Hanif Khan did not point any provision from the Police Act or Rules giving right to a "" person whose name is not included in the 'F' list to file an appeal or representation. However, they relied on Section 21 of the Civil Servants Act. Section 21 is to the following effect: -c "21. Right of Appeal or Representation. (1) Where a right to prefer an appeal or apply for review in respect of any order relating to the 'terms and conditions of his service is allowed to a civil servant by any rules applicable to him, such appeal or application shall, except as may otherwise be prescribed; be made within sixty days of the communication to him of such order. (2) Where no provision for appeal or review exists in the rules in respect of any order, a civil servant aggrieved by any such order may, except where such order is made by the Government, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order: Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade." The legal position, as enunciated by this Court inAzad Government of the State ofJ&K vs. Muhammad Rafique [Civil appeal No. 22 of 1992 decided on 16 th November, 1992 reported as PLJ 1993 SC(AJK) 39] is that all Police officers are "civil servants" within the meaning of Civil Servants Act and this Act is applicable to them in the matters which are not covered by the Police Act. Thus Section 21, reproduced above, was clearly applicable to the present situation. However, Sardar Rafique Mahmood Khan contended that even if Section 21 may be found to be applicable no representation could be made by the appellants because of the overriding provision contained in proviso to sub-section (2). After giving due consideration to this contention we are of the view that proviso relied upon by Sardar Rafique Mahmood Khan is not applicable to the present case. The appellants have throughout been contending in the pleadings and during arguments that their names were not brought under consideration when selection was being made. It follows that their suitability had not been determined at all and this is the ground on which the appeals filed b y the appellants in the Service Tribunal were held to be maintainable. The appellants have not challenged an order or decision by which they had been found nsuitable to be selected for promotion as Inspectors. Their case is that a right had vested in them on the basis of the claims put forward by them that they should have been considered for selection to the posts of Inspectors. The proviso under examination bars the filing of a representation only in respect of matters relating to the determination of fitness. A case in which a person has not been considered at all and his fitness has thus not been determined is not covered by the mischief of aforesaid proviso. Therefore, the appellants could file a representation against the order which was subsequently challenged by them in the Service Tribunal. It follows that the appellants did- not avail the departmental remedy available to them. Thus hi light of proviso (a) of Section 4(1) of the Service Tribunals Act the appellants were debarred from filing appeals before the Service Tribunal against the order against which they failed to represent. Thus no valid objection can be taken to the order of the Service Tribunal andthis appeal stands dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC (AJK) 70 [Appellate Jurisdiction] PLJ 1993 SC (AJK) 70 [Appellate Jurisdiction] Present: SARDAR MUHAMMAD ASHRAF KHAN AND BASHARAT AHMAD SHAIKH, JJ Mst. SHERO BEGUM-Appellant versus ABDUL QAYYUM KHAN and another-Respondents Civil Appeal No. 23 of 1992, dismissed on 27.4.1993, (approved for reporting on 4.5.1993). [On appeal from judgment and decree of High Court, dated 22.1.1992, passed in Civil Appeal No. 94 of 1979] Consent decree— —Consent decree-Whether it was in fact a sale-Question of-Burden of proving that consent decree was in fact a sale, was on appellant—Testimony of witnesses has been properly evaluated and evaluation oes not suffer from misreading or non-reading of evidence-Witnesses admitted that respondent o. 1 had possession of suit land-A perusal of statements of witnesses shows that they did not have any knowledge about llegation that there was a transaction in nature of sale between respondents No. 1 and 2-Held: There is no ground for interference-Appeal dismissed. [P.37JA&B Mr. Ghulam Mustafa Mughal, Advocate for Appellant. Sardar Muhammad Yasin Khan, Advocate for Respondent No. 1. Date of hearing: 7.2.1993 judgment Basharat Ahmad Shaikh, J.--This case has come to this Court for the third time. At the two previous occasions the judgment passed by the High Court was set aside and the case was remanded for fresh decision in light of certain observations which were made by this Court. At both these occasions appeals were brought to this Court by Mst. Shero Begum and this time also the High Court has decided the case against her. However, we need not go into the details of the remand orders passed by this Court or the judgments pronounced by the High Court at the previous occasions because nothing turns on them. The facts forming the background to the present appeal, by leave of the Court, are that half of the land bearing No. 1772/1513 measuring 7 kanals 1\ marlas situated in village Hill Srung, Tehsil Bagh was sold by Mir Akbar Khan, respondent No. 2, to Abdul Qayyum Khan respondent No. 1, on 20th of June 1953 through a sale-deed. On 12th of August 1958 by another legal instrument, which is described as an 'Iqrarnama' but the parties are at variance about its true nature, was executed in which Mir Akbar Khan stated that he had already sold half share through a sale-deed executed on 20th of June 1953 to Abdul Qayyum Khan and that vendee had made improvements including the construction of a house; now he had received Rs. 250/- from said Abdul Qayyum Khan and in lieu thereof was giving remaining half share of the land mentioned above by way of mortgage till April 1960; in case of his failure to pay the amount and take back the possession of the land from the mortgagee, the land shall be deemed to have been sold to the mortgagee and after April 1960 the mortgagee will be at liberty to treat the land as his ownership and he may get the necessary entries made in the record. This document forms part of the record but has not been duly exhibited. However, the contents of the documents have been admitted during the evidence produced by the parties. The contents of the document are duly mentioned in the plaint in the present case. On 3rd of May 1973 Abdul Qayyum Khan obtained a consent decree from the Court of Sub-Judge Bagh on a suit instituted on 22nd of April 1973 against Mir Akbar Khan. The decree is to the effect that the plaintiff had been in adverse possession of land measuring 7 kanals 1\ marlas under survey No. 1772/1513 inclusive of a house and that the possession has matured into title. On 2nd of May, 1974 Mst. Shero Begum, wife of Mir Akbar Khan respondent, filed a suit alleging therein that the decree passed ori 3rd of May 1973 was in fact a sale in the garb of a decree and that by treating the decree as a sale a decree of possession on the basis of right of prior purchase on the payment of Rs. 250/- may be passed in her favour. She stated that she was entitled to the decree on the grounds that she was Mir Akbars wife and a co-sharer. Another suit of similar nature was filed by one Abdul Aziz Both the suits were consolidated and decided together on 31st of March 1979. After trial both the suits were dismissed. The learned Sub-Judge held that it had not been proved that the consent decree was in fact a sale. Abdul Aziz did not file appeal and the matter has come to an end so far Abdul Aziz is concerned. An appeal filed by Mst. Shero Begum was dismissed by the Additional District Judge on 20th of August 1979. Then there were, as mentioned above, two judgments of the High Court which were vacated by this Court and remand orders were passed. The third judgment passed by the High Court is now the subject matter of this appeal. It was pronounced on 22nd of January 1992. The High Court has affirmed the findings recorded by the Courts below and has held that the consent decree challenged by Mst. Shero Begum has not been proved to be in fact a sale and therefore was not pre-emptible. We have heard Mr. Ghulam Mustafa Mughal in support of the appeal and Sardar Muhammad Yasin Khan, who appeared for respondents. Sardar Muhammad Yasin Khan has submitted an application that he may be allowed to file a certified copy of the complaint filed by Mir Akbar respondent No. 2 on 18th of July 1960 against respondent Abdul Qayyum Khan and others, in which it was alleged that Abdul Qayyum Khan and others trespassed into his land on 16th of.

PLJ 1993 SC 23 PLJ 1993 SC 23 [Appellate Jurisdiction] Present: muhammad afzal zullah, C.J., saiduzzaman siddiqui and wali muhammad khan, JJ. ARIF ALI KHAN and another-Petitioners versus THE STATE and 6 others-Respondents Criminal Petition No. 70 of 1992, dismissed on 12.10.1992 (approved for reporting on 8.11.1992.) [From judgment of Lahore High Court, Rawalpindi Bench, dated 23.5.1992, passed in Crl. Misc. No. 40/Q of 1991.] Discharge- —Offence under Sections 324/147/148 PPC--Discharge of petitioners by Magistrate-Discharge order set aside by High Court—Challenge to- Contention that order of discharge passed under Section 173 Cr.P.C. was not revisable under Sections 435 to 439 of Cr.P.C.-Application filed by respondent No. 2 before High Court, was not under Sections 435 to 439 but it was under Section 561-A of Cr.P.C.-H%h Court reached conclusion that exclusion of names of petitioners from first challan, was malafide act on part of police, and manner in which discharge order was obtained by police was an abuse of process of court—Held: Learned Judge in Chamber was fully justified in setting aside order of Magistrate under Section 561-A of Cr.P.C., and no interference is called for with order of High Court-Petition dismissed. [Pp.25&26]A PLJ 1985 SC 63 distinguished. Malik Rab Nawaz Noon, Advocate, Supreme Court, instructed by Ch. Akhtar Alt, AOR for Petitioners. Mr. M. Ilyas Siddiqui, Advocate, Supreme Court, instructed by Mr. Ejaz Muhammad Klian, AOR for Respondent No.2. Date of hearing: 12.10.1992. judgment Saiduzzaman Siddiqui, J.—The petitioners are seeking leave to appeal against the order of Lahore High Court dated 23.5.1992, whereby the learned Judge in Chamber, accepted the Criminal Miscellaneous Application No. 40/Q of 1991 filed by Respondent No. 2 (Nawab Khan), set aside the order of trial Magistrate dated 20.8.1991, discharging the petitioners in criminal case registered under Section 324/147/148 PPC (FIR No. 344 of 1991) and directed the trial court to proceed with the case in accordance with the law. The facts of the case are that respondent No. 2 lodged F.I.R. No. 344 dated 5.8.1991 at Police Station Wah Cantt under Section 324/147/148 PPC alleging that the petitioners alongwith 3 others caused eleven injuries to his son Ghulam Habib with intention to kill him. In the F.I.R. petitioner No. 2 was clearly shown armed with a Kulhaii with which he allegedly caused injuries on the forehead and head of Ghulam Habib while others caused injuries to him with Dandas. The petitioners obtained interim bail before arrest in the case from the Additional Sessions Judge, Rawalpindi, on the same day e.g. 5.8.1991, but subsequently the interim bail was not confirmed and the application for pre-arrest bail was rejected by the Additional Sessions Judge on 19.8.1991. It is stated in the impugned order that Khaliq Dad, I.O. in the case was present before the Court, alongwith the record when the pre-arrest bail applications of petitioners were rejected by the Additional Sessions Judge, Rawalpindi. Inspite of the order of Additional Sessions Judge, Rawalpindi, declining pre-arrest bail to the petitioners, the same I.O. submitted an application on the next day, e.g. 20.8.1991, before the R.M./Illaqa Magistrate praying for discharge of petitioners from the case on the ground that during investigation of the case the petitioners have been found to be innocent by the police. The Illaqa Magistrate in a mechanical manner passed the following Order:-- "Allowed as per request." Challan submitted in the case before the Court on 27.8.1991, however, contained the names of the petitioners in column No. 2 of the challan, meaning thereby that action against them was left at the discretion of the Court. This challan was subsequently withdrawn from court and a fresh challan was submitted on 31.8.1991 in which the names of petitioners were omitted. The learned Judge in Chamber found that in the first challan submitted before the court, the words c/ c"J|f " was made to read " J^-c^lf " through unauthorised cutting and interpolation. Considering the above circumstances, the learned Judge in Chamber declared the order of Magistrate discharging the petitioners from the case and the act of police officers in amending the first challan in the case, as without lawful authority, and consequently directed the Magistrate to proceed with the case in accordance with the law. The learned counsel for the petitioners very vehemently contended before us that the order of Magistrate dated 20.8.1991 having been passed on the report of police officer submitted to him under Section 173 Cr.P.C., the order was not reviseable under sections 435 to 439 Cr.P.C. In support of his above contention the learned counsel relied on the case of Bchadur vs. State (PLJ 1985 SC 63). It is true that in the above cited case this court clearly laid down that a Magistrate while cancelling a registered criminal case, acting on the report of police submitted to him under Section 173 Cr.P.C., though required to act judicially but his orders so passed are not amenable to revisional jurisdiction under Sections 435 to 439 Cr.P.C. But this does not mean that where the court reaches a positive conclusion in a case that a particular order passed by the subordinate criminal court amounted to an abuse of the process of court, it would be powerless to rectify the injustice. In the case before us, firstly, the application filed by respondent No. 2 before the High Court was not under Sections 435 to 439 Cr.P.C. but it was a petition under Section 561-A Cr.P.C. Secondly, on the facts of the case the learned Judge in Chamber reached the conclusion that exclusion of the names of petitioners from the first challan submitted to the court was a malafide act on the part of police and the manner in which the orders were obtained from the Magistrate by the police for discharge of petitoners from the 'case clearly amounted to an abuse of the process of the Court. On these considerations, the learned Judge in Chamber in our view was fully justified in setting aside the order of Magistrate under Section 561-A Cr.P.C. and directing him to dispose of the case in accordance with the law. No interference is called for with the order of High Court. The petition is dismissed. Leave refused. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 SC 26 [Appellate Jurisdiction] PLJ 1993 SC 26 [Appellate Jurisdiction] Present: MUHMMAD afzal zullah, CJ. and muhammad afzal lone, J. SHAKEEL AHMAD-Petitoner versus THE STATE-Respondent Criminal Petition No. 98(S) of 1992, dismissed on 20.10.1992 (approved for reporting on 16.11.1992) [On appeal from judgment dated 25.8.1992, of Federal Shariat Court, in Crl. Appeal No. 132-L of 1991.] Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 354&450 read with Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Sections 10(3)&18-Trespass into house for outraging modesty of victim-Conviction for-Challenge to-Petitioner committed trespass in order to commit rape with victim-Contention that offence under Section 10(3) of Ordinance being punishable with R.I. for 25 years, could not be equated with an offence punishable with imprisonment for life provided in Section 450 of PPC for which petitoner has been convicted-Held: Imprisonment for life having been defined under law as 25 years and Section ' 10(3) of Ordinance also having prescribed 25 years imprisonment, conviction and sentence awarded under Section 450 PPC are not illegal-Petition dismissed. [Pp.29&30]A,B,C&D Mr. Muhammad Munir Klian, Advocate, Supreme Court and Ch. Qamaniddin Meo, AOR (absent) for Petitioner. State: Not represented. Date of hearing: 20.10.1992. order case of double conviction under Sections 354 and 450 PPC, has not challenged the finding of guilty in so far as the outline and main features of the case are concerned. He, however, has contended that although the petitioner has rightly been convicted and awarded sentence of one year R.I. under Section 354 PPC, the sentence and conviction under section 450 PPC is illegal. According to him the conviction under Section 450 PPC is possible only if the accused commits the offence of trespass in order further to commit an offence punishable with "imprisonment for life".~In this case at best the trespass was committed in order to commit offence punishable to "25 years imprisonment" under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance. Sections 450 PPC and 10(3) of the Ordinance read as follows:-- S. 450. Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment for life, shall be punished with imprisonment of either description for a term not exceeding ten years and shall also be liable to fine. (Underlining is ours)' S. 10(3) Whoever commits zina-bil-jabr liable to tazir shall be punished with imprisonment for a term which shall not be less than four years nor more than twenty-five years and shall also be awarded the punishment of whipping numbering thirty stripes. It is also relevant to reproduce Section 451 PPC which, according to learned counsel, would be applicable in this case as well as Section 452 PPC which also is relevant. S. 451. Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years. S. 452. Whoever commits house-trepass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. , Section 354 PPC, for which conviction and sentence, conceded as proper, reads as follows:-- S. 354: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he willl thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both. The allegations of the prosecutrix against the petitioner and the findings of the Federal Shariat Court when read can be treated as factual basis for determining the validity of conviction and sentence under Section 450 PPC. They read as follows:-- "About two years back, it was after Asar time that I was sitting in home. I was sitting alone in my house. The outer gate of our street was opened. In the meantime accused Shakeel present in the court entered my house. He felled me down on a cot and opened my shalwar. The accused tried to commit rape upon me but I raised alarm whereupon Sadiq and Akram PWs were attracted to the spot. Sadiq PW rescued me from the clutches of the accused but Shakeel accusd caught hold of Sadiq and started fighting with him. ............................................................ - ...................... Sadiq PW also went outside from my house in injured condition". The relevant part of the judgment of the Federal Shariat Court reads as follows:-- "However, from what she stated and what was contained in the first information report it was evident that she had not been stripped off her shalwar nor did the appellant put off his shalwar. The appellant simply seems to have mishandled her. His misdeed amounted to commission of offence punishable under Section 354 of the Pakistan Penal Code and not of attempt to commit Zina-bil-jabr. Therefore, his conviction under Section 18 read with Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, recorded by the learned trial Court is converted into one under Section 354 of the Pakistan Penal Code and in place of sentence of five years awarded by the learned trial Court in respect of his conviction of offence of attempt to commit zina-bil-jabr he is given sentence of one year's rigorous imprisonment touching the altered conviction. His conviction of commission of. offence of house trespass under Section 450 of the Pakistan Penal Code is quite in order and is affirmed. Nevertheless, the sentence of five years' rigorous imprisonment is reduced to two years' rigorous imprisonment. Both the sentences will run concurrently. With the aforesaid reduction in the sentence and alteration of conviction indicated above the appeal stands dismissed. As already directed by the . learned trial court the appellant will enjoy benefit of the provisions of i Section 382-B of (he Code of Criminal Procedure for the purpose of adjustment of the period of his detention during trial of the case against the term of sentence of imprisonment."With respect some of the conclusions of the Federal Shariat Court regarding the culpability and the measure of sentence in a case like the present one would have required serious examination if there would have been a petition for leave to appeal against the acquittal under Section 18 read with Section 19(3) of the Ordinance and/or for enhancement. Be that as it may, it has not been held that the victim had been "stripped off her shalwaf nevertheless the petitioner has "opened" the same after he had "felled" the victim on a cot whereafter she stated "the accused tried to commit rape" upon her. And that is why she tried to save herself by raising alarm. If the petitioner had succeeded in his design learned cuonsel agreed it would have resulted in the rape and the offence woulld have been under Section 10(3) of the Ordinance. Thus he committed trespass "in order to commit that offence." But the learned counsel vehemently argued that the offence being punishable | with R.I. for 25 years as the highest punishment, could not be equated with an | B offence "punishable with imprisonment for life," provided in Section 450 PPC for ; which the petitioner has been convicted. ' Learned counsel for the petitioner himself stated that imprisonment for life in practical terms means 25 years of imprisonment but he stated that there might be other qualitative difference between the two. This may be possible in so far as the Jail Rules in both the punishments are concerned. Though none has been cited before us. Be that as it may, in so far as a practical result is concerned; a person who commits trespass in order to- commit an offence which is liable to be punished with imprisonment for 25 years (whether described in numbers or in words and defined in such a manner as to come to same number of years), Section 450 PPC would be straightaway attracted. If under the law imprisonment for life has been defined as 25 years imprisonment then Section 10(3) having prescribed 25 years imprisonment would be covered by the phrase "offence punishable with imprisonment for life." Hence the conviction and sentence awarded under section 450 PPC are not illegal. In addition to the afore recorded decision there is another aspect of the same subject. Section 451 PPC makes the trespass punishable with two years R.I. and upward imprisonment if the trespass is committed in order to committing of an offence punishable with any imprisonment. It is not the argument of the learned counsel that the trespass by the petitioner was not for the commission of any offence punishable with imprisonment. He could, therefore, be awarded sentence of 2 years R.I. under Section 451 PPC. Not only this, Section 450 PPC makes a house trespass punishable with imprisonment for seven years R.I., if the trespasser was prepared to cause hurt to any person or to assault any person or to wrongfully restrain any person or to put any person in fear of hurt or of assault to harm or wrongful restraint. In this case it is impossible to imagine that when committing trespass the petitioner was not to assault the prosecutrix which actually he did and for which he also has been convicted under Section 354 PPC. Therefore, he could be awarded 7 years R.I. under Section 452 PPC. Even if we would have agreed with the learned counsel that Section 450 PPC was not applicable, on grant of leave and on hearing of the appeal the case might have been remanded to the Federal Shariat Court for re-hearing of the petitioner's appeal with regard to conviction under Section 450 PPC and as discussed above the punishment could have been awarded under an altered conviction and the original sentence of 5 years R.I. under the second head of charge might as well been restored. In the light of the foregoing discussion we do not find any justification for grant of leave to appeal nor otherwise it is a fit case for grant thereof. This petition, therefore, is dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 SC 30 PLJ 1993 SC 30 [Appellate Jurisdiction] Present: shafiur rahman, saad saood jan and muhammad rafiq tarar, JJ GHULAM RASOOL and another-Appellants versus MUHAMMAD LATIF and 2 others-Respondents Civil Appeal No. 1017 of 1990, dismissed on 22,11.1992 [On appeal from judgment of Lahore High Court, dated 12.4.1986, passed in R.S A. No. 125 of 1983] punjab Pre-emption Act, 193 (I of 1913)— —S.21-A--Pre-emption--Suit for--Suit decreed-Challenge to--Whether stranger vendees having sold their shares to appellants after institution of suit, disability in shape of sinker, was shed off-Question of--Section 21-A was introduced by Punjab Act I of 1944-Expressions "status quo" and "voluntary acquisition" used in statement of objects and reasons for amendment of 1944, both 'relate to vendee in pre-emption suits— Status quo will imply fixing of status of vendee on date of institution of suit—There is voluntary acquisition of right of property by vendee after institution of suit-Riddance of a disqualification or a disability also amounts to change in status quo, an improvement in status-Held: Word "status' in context of pre-emption law, is pervasive in scope to cover and include even shedding of a disability—Appeal dismissed. [Pp32&33.]A Ch. KJialilur Rahman, Senior Advocate, Supreme Court, instructed by Mr. Tanvir Ahmad, AOR, for Appellants. Mr. Asadullah Shaikh, Advocate, Supreme Court, instructed by Ch. Mazliarul Haq Bhatti, AOR for Respondent. Date of hearing: 1.11.1992. judgment Shafiur Rahman, J.-Leave to appeal was granted to the two joint vendees to examine whether their case was not hit by Section 21-A of the Punjab Pre­ emption Act in shedding off a disability as distinguished from an improvement effected after the institution of the pre-emption suit. 2. The factual background of the case is that Mst. Rasool Bibi sold 38 kanals 6 marlas of land on 31.5.1979 in favour of the appellants and three other joint vendees with them. Suit for pre-emption was instituted on 29.5.1980. On 9.6.1980 the three other joint vendees who had no preferential or equal right of pre­ emption to compete with the pre-emptors sold their share in favour of the appellants. The appellants had a competing pre-emption claim against the preemptors and were at par with them. In this manner having shed off that disability of joint vendees who were strangers, they claimed that their pre-emptive right being equal and that of the pre-emptors being not superior, the pre-emption suit should not succeed. The trial court disposed of this claim of the appellants as hereunder:- "The plaintiffs were owners in the estate whereas all the vendees defendants did not possess this status. The defendant Nos. 3 to 5 were strangers and since the defendant Nos. 1 and 2 had joined with them the stranger the rule of sinker applies and in that case the status of the defendant Nos. 1 and 2 also relegates to that of the strangers and they would also be considered as strangers for the purpose of present suit. The plaintiffs being owners in the estate possess superior right as against the vendee/defendants. Issue No. 1 is decided in favour of the plaintiffs. The sale of the suit land in favour of defendant No. 2 made on 9.6.1980 by way of registered sale deed and during the pendency of suit shall have no effect upon the rights of the pre-emptor/plaintiffs." 3. On Regular First Appeal, the High Court too affirmed this judgment after extensively examining the case law on the subject. Hence this appeal. 4. Ch. Khalilur Rehman, Senior Advocate, the learned counsel for the appellants has taken us to the case law previous to the introduction of Section 21- A in the Punjab Pre-emption Act by punjab Act I of 1944. This he has done with a view to distinguish the three principles operative in the field of pre-emption law. The first is the status with regard to the pre-emption law, the second is the disability, attaching to a pre-emplor and the shedding off; the third is the doctrine of lis pendens. , It is contended that Section 21-A of the Pre-emption Act takes care of the first and the third principles but it leaves unaffected the second namely, a case of shedding off a disability. He has relied for this view on Her Keshi versus Mewa Ram and others (AIR 1923 Allahabad 294), MadJio Singh and another versus Lieut. James R.R. Skinner and others (23 I.L.R. 1550), All Muhammad and another versus Muhammad Din and others (23 I.L.R. 190), Jallu and others versus Shahu, Mliia and others (19 I.L.R. 93) Hayat Baklish versus Mansabdar KJian Dadan and others (16 I.L.R. 921), Moot Chand and others versus Ganga Jal and others (AIR 1930 Lahore 356), and Bishan Singh and others versus KJiazan Singh and another (AIR 1958 SC 838). 5. In resisting the appeal, Mr. Asadullah Sheikh, Advocate, the learned counsel for the respondents pre-emptors has contended that all the three principles applicable to a pre-emption case have been taken care of by the amendment introduced by Punjab Act I of 1944 and this has been examined in this Court in Muhammad Miuntaz versus Muhammad Sliafi and 4 others (PLJ 1992 SC 450), Sawar Muhammad Sharif and 2 othcs versus Makhmool and others (1991 SCMR 1419), Mania Bakhsh and 10 others versus Muhammad Sharif (PLJ 1989 SC 393) and Muhammad Ismail and others versus KaramatAli (PLJ 1989 SC 382). 6. Section 21-A of the Punjab Pre-emption Act was introduced by Punjab Act I of 1944. It provides as hereunder:- "Any improvement, otherwise than through inheritance or succession, made in the status of a vendee-defendant after the institution of a suit for pre-emption shall not affect the right of the pre-emptor plaintiff in such suit." 7. The statement of objects and reasons published in the Punjab Gazette dated 15th March, 1944 while notifying the bill proposing this amendment mentions as hereunder:- "Section 21-A is being added to the Punjab Pre-emption Act to restore the status quo in the case of pre-emption suits wherein the vendee seeks to improve his position by means of a voluntary acquisition of right of property made after the institution of the suit." 8. Two expressions relevant to the case in hand contained therein are "status quo" and "voluntary acquisition" both relatable to vendee in pre-emption suits. Status quo will imply fixing the status of the vendee as on the date of the institution of the suit. Secondly in the case in hand, there is voluntary acquisition of right of property by the vendee afte the institution of the suit. Besides, riddance of a disqualification or a disability also amounts to change in the status quo, an improvement in status. The word "status" in the context of Pre-emption Law means position or locus stand! to pre-empt a sale, to compete with the pre-emptor or to defeat the rights of a pre-emptor. The word is pervasive in scope to cover and include even the shedding off a disability. In the circumstances, no merit is found in the appeal which is dismissed with no orders as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 33 PLJ 1993 SC 33 [Appellate Jurisdiction] Present: dr. nasim hasan shah, ACJ, abdul shakurul salam and saleem akhtar, JJ HAKIM KHAN and 4 others-Petitioners versus THE STATE-Respondent Criminal Review Petition No. 12-L of 1991, decided on 24.11.1992 For review of judgment dated 10.6.1991, of Supreme Court of Pakistan, in Crl. Appeal No. 112 of 1989. (i) Contradiction between Medical and Oral Evidence- —Tripple murder-Offence of-Conviction for-Challenge to-Medical testimony shows no bullet injuries on person of any of three deceased, but according to P.Ws. some of review petitioners had fired upon deceased with their rifles-According to P.Ws. two review petitioners were armed with rifles-They were awarded lesser sentence on ground that shots fired by them, did not hit deceased—Held: Finding recorded by Supreme Court that medical evidence did not contradict oral evidence in any substantive measure as to render it doubtful, does not suffer from any infirmity, (per Nasim Hasan Shah ACJ) [P.36]A&B (ii) Criminal Procedure Code, 1898 (Vofl898)» —S.540-Tripple murder-Offence of-Conviction for-Challenge to- Contention that examination of Investigating Officer by one of Judges in Chamber after judgment was reserved by Supreme Court, in absence of parties or,their counsel, was a clear violation of Section 540 of Cr.P.C.-Learned counsel was unable to show how petitioners had been prejudiced by learned Single Judge's effort to satisfy himself on some question requiring clarification- -Duty of court is to do justice, and foremost task of court is to endeavour to discover truth-Held: All efforts in this direction subject to some restraints, would be quite unobjectionable and indeed laudable. (Per Nasim Hasan Shah ACJ). [Pp.36&37]C&D (iii) Criminal Procedure Code, 1898 (V of 898)-- —S.540--Tripple murder-Offence of--Conviction for-Challenge to-Whether, after hearing appeal when judgment is reserved, it is open to Judge to call Investigating Officer and examine him in absence of convicts or their counsel-­ Question of--Course allowed by Section 540 Cr.P.C. requires presence of petitioners or their counsel to assist court by cross-examining witness—From perusal of judgment, it does not appear that I.O. was examined or heard with concurrence of other two learned Judges—Obviously there was some doubt in facts of case and it is after hearing I.O. that mind was made up and judgment written by learned Judge-Held: It is not open to Judge to call I.O. and examine him in absence of convicts or their counsel after judgment was reserved, and matter requires re-hearing.(Per majority). [Pp.37&38]E,F&G Mr. Ija: Him.tain Batalvi, Senior Advocate, Supreme Court, instructed by Mr. M. A. Qure.thi, AOR for Petitioners. State: Not Represented. Date of hearing: 7.11.1992. order Nasirn Hasan Shah, ACJ.—This is a petition for review of this Court's judgemen! dated 10.6.1991 passed in Criminal Appeal No. 112 of 1989. The relevant facts of the case as summarised by the learned counsel for the petitioners arc as follows: "The occurrence took place on 20.7.1983 at peshi-wela in village Okhley Mohlla, P.S.Ciangial. F.I.R. was lodged by Sher Ahmad, real brother of Saleh Muhammad, deceased at P.S. Gangial on the same day at 4.30 P.M. which was recorded by Gul Jahan, S.H.O. The incident related to tripple murder of Saleh Muhammad, Ahmad Sher and Muhammad Sultan. Hakam Khan, Ahmad Yar, Zafar Iqbal and Muhammad Muzxaffar were named in the F.I.R. alongwith Fazal Ellahi abscondcr and Fateh Muhammad since acquitted. . The motive for the occurrence as stated in the F.I.R was that Saleh Muhammad deceased had illicit relation with Mst. Nasreen, daughter of Fazal Elahi absconder. To punish therefor, Fazal Ellahi alongwith other accused, made murderous assault on Saleh Muhammad, ten months before the present occurrence and a case under Section 307 PPC was registered on 29.9.1982. Notwithstanding, his anger remained undiminished, resulting in the present occurrence. As to manner of occurrence, the prosecution alleged that the three deceased and two witnesses. P.W. 10 Jehan Khan and Jan Muhammad P.W. (not examined) hired a taxi which was brought by Fateh Muhammad, Taxi Driver. The complainant Sher Muhammad and Jan Muhammad (not examined) used a motorcycle while the three deceased and Jehan Khan sat in Taxi Car and all of them left for the house of Mushtaq Mahajar in village Sheikhu to have a lunch there. Mushtaq. a friend of Ahmad Sher deceased who were living together in Saudi Arabia invited the members of the party. The complainant and the deceased while returning from Mushtaq's house after lunch were confronted with the accused who were travelling in a Wagon No. T.S. 54, which was driven by aforesaid Fazal Ellahi. The Wagon struck against the Taxi Car. The Review petitioners and Fazal Ellahi armed with guns and rifles alighted from the wagon. Fazal Ellahi raised lalkara that they had come to take revenge of their insult and immediately opened fire on Saleh Muhammad deceased, who was hit, while sitting in the car while the other two deceased, Ahmed Sher and Muhammad Sultan received injuries while running to save their lives outside the car. However, Jehan Khan P.W. escaped unhurt. Sher Ahmad P.W. 9 and Jan Muhammacl P.W. (not examined) saw the occurrence, concealing himself (?) behind the sarkandas. After the departure of the accused the eye-witnesses namely Jehan Khan, Sher Muhammad and Jan Muhammad came to spot and found that Saleh Muhammad, Ahmad Sher and Muhammad Sultan had succumbed to their injuries. The review petitioners, on being tried were convicted by the learned trial Judge for the offence under Section 302/149 PPC. Hakim Khan, Ahmad Yar, Zafar Iqbal and Muhammad Muzaffar were sentenced to life imprisonment, each, with fine of Rs. 50,000/- each on account of murdering Saleh Muhammad. Muhammad Khan for this murder was sentenced to death with fine of Rs. 50,000/-, in default thereof to undergo 4 years R.I. For murdering Ahmad Sher and Muhammad Sultan, Hakim Khan, Ahmad Yar, Zafar Iqbal, Muhammad Muzaffar and Muhammad Khan were sentenced to death on either count and fine of Rs. 50,000/- each, or in default thereof to suffer 4 years R.I. each. Fateh Muhammad accused was, however, acquitted and set at liberty. The petiiioners filed appeal before the Lahore High Court against their conviction and sentences; whereas the complainant filed a criminal revision against the acquittal of Fateh Muhammad. The Lahore High Court by its judgment and order dated 6.7.1986 confirmed the death sentences of Hakim Khan, Ahmad Yar and Muhammad Khan, whereas the death sentence of Muhammad Mu/affar and Zafar Iqbal for murdering Muhammad Sultan and Ahmad Sher were altered to life imprisonment on each count. The sentences were ordered to run concurrently. However, the sentences of fine and sentences in lieu thereof were maintained. Muhammad Muzaffar and Zafar Iqbal were also extended benefit of Section 382-B Cr.P.C. Resultantly, the revision petition filed by the complainant was also dismissed. Feeling dissatisfied all the five review petitioners aggrieved by the judgment of the Lahore High Court, Lahore dated 6.7.1986 filed leave to appeal before this Court on 2.7.1989 (Cr. Appeal No. 112 of 1989). This criminal appeal came up for hearing on 27.5.1991 before the Bench comprising of Nasim Hasan Shah, Saad Saood Jan and Rustam S. Sidhwa, JJ, who after hearing both the parties reserved the judgment which was actually announced on 10.6.1991 at Lahore. Herein, the judgment passed by the High Court was maintained and the conviction and sentences of the review petitioners were upheld under Section 302/148/149 PPC. Hence this petition for review. Mr. Ija? Hussain Batalvi, learned counsel for the review petitioners, has urged, in the main, two grounds for review of this Court's earlier judgment:— (a) The plea that a manifest contradiction existed between the medical and the ocular evidence which has not been legally or rightly attended to; and The Court received additional evidence after the conclusion of the hearing of the Criminal Appeal and before the announcement of the judgment, without following the course prescribed in this behalf by Section 540 Cr.P.C. So far as the first contention is concerned, it is submitted that this Court in Para 19 of its order (impugned herein) has itself observed that the medical testimony shows that there are no bullet injuries of any rifle on any of the three deceased, whereas according to the P.Ws. some of the review petitioners had fired Upon the deceased with their rifles. This inconsistency was dealt with by this Court by observing:- "It is alleged that there were no bullet injuries on any of the deceased. Unfortunately, the bodies of the three deceased were not ex-rayed. Six empty cartridges of 7 mm were recovered from the spot. In these circumstances, it cannot be said that no rifle was used. The medical testimony therefore does not contradict the ocular account in any substantive measure as to render it doubtful". (underlining is ours)' It is urged that the above finding is based on a conjecture and, therefore, needs review. We do not agree. According to P.Ws. it was Zafar Iqbal and Muhammad Muzaffar (review petitioners Nos. 3 & 4) who were armed with rifles. They were awarded the lesser sentence on the ground that the shots fired by them had not, in all likelihood, hit Ahmad Sher and Muhammad Sultan deceased. The finding recorded by this Court, therefore, that the medical testimony did not contradict the ocular testimony "in any substantive measure as to render it doubtful" does not suffer from any infirmity. The second ground urged by Mr. Ijaz Batalvi is about additional evidence having been received after the conclusion of the arguments. In this connection, it is submitted that the learned author Judge (Rustam S. Sidhwa, J) had summoned the Investigating Officer to explain certain questions arising in this case and the said Investigating Officer appeared before the learned Judge in his Chamber on 5.6.1991 and made some statement before his Lordship. Neither the counsel of the parties nor the parties were summoned by the learned Judge when this statement was heard. The course adopted of summoning the said witness and receiving answers ex-pane to questions posed to him was a clear violation of the provisions of Section 540 Cr.P.C. At first blush the objection raised to the course adopted seems serious. On deeper examination and further reflection this impression is dissipated. The learned counsel for the petitioners was unable to show how the petitioners had been prejudiced by the learned Judge's effort to satisfy himself on some question on which he required some clarification. He could not show that any part of the judgment delivered was based on material not on the Court record or how any miscarriage of justice had occurred by putting some questions to the Investigating Officer in regard to his statement made in Court. It should be clearly understood that the duty of the Court is to do justice, in accordance with the law. And in doing so the foremost task of the Court is to endeavour to discover the truth in the matter before him to the extent that is humanly possible. Undoubtedly, in this endeavour of trying to discover the truth he cannot act in manner or adopt a procedure which causes prejudice to one of the parties or places any party in a disadvantageous position and where such a procedure is adopted it cannot be countenanced. But by the same token no artificial limitations or inhibitions can be placed upon the powers of the Court in following any course which enables it to do complete justice in the cause. All efforts in this direction subject to the restraints stated above would be quite unobjectionable and indeed laudable. There is no merit in this petition for review. Dismissed. Abdul Shakurul Salam. J.--I have gone through the proposed judgment of the learned Acting Chief Justice, my learned brother Mr. Justice Dr. Nasim Hasan Shah but regret that I cannot subscribe to the view that after hearing a criminal appeal by the convicts when judgment is reserved, it is open to the Judge i to call the Investigating Officer and examine him in the absence of the convicts or J their counsel and then write the judgment and announce it. 2. As far as this petition is concerned the relevant facts are that the petitioner convicts' appeal was heard alongwith the complainant's appeal for enhancement of sentence of two convicts. Appeals were heard by a Bench of three learned Judges of the this Court on 27.5.1991. Judgment was reserved. It was announced,on 10.6.1991 dismissing both the appeals. The petitioners seek review of the judgment dated 10.6.1991 on various grounds, including: "That the Review Petitioners have learnt that this Hon'able Court recorded additional evidence and was pleased to send for the Investigation Officer of the case, whose statement/deposition was received by this Hon'able Court. At the time of receiving deposition of the I.O. by the Hon'able Court, the Review Petitioners were neither informed nor represented through their counsel to assist the court by cross-examining the witness. This course allowed by Section 540 of Cr.P.C. would still require the presence of the petitioners or their counsel in Court. Thus the judgment by this Hon'able Court requires review". 3. Learned counsel for the petitioners has produced a photo-stat copy of a communication from Police Lahore to S.P. Mianwali to direct the Investigating Officer to talk on phone with the learned Judge, who it appears had been assigned the case to write the judgment. In the petition it is stated that the Investigating Officer was sent for and examined. 4. No doubt. Section 540 of the Cr.P.C. provides that: "Any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case". But all this is to be done by the Court; obviously in open Court in the presence of the parties. From a perusal of the judgment it does not appear that the Investigating Officer was examined or heard with the concurrence of the other two learned Judges, nor the fact is mentioned in the judgment. Whether the petitioners were prejudiced by the unorthodox procedure in the writing of the judgment calls for no more comment than that there is no way of saying that what the learned Judge had learnt from the Investigating Officer did not affect his mind in writing the judgment. It is obvious that there was some doubt or the learned Judge wanted to be sure about some facts of the case when he called the Investigating Officer and it is after hearing him that the mind was made up and judgment written. In all the circumstances of the case I am of the view that the matter requires rehearing. Let a notice be issued to the respondent and the complainant Shcr Ahmad.Saleem Akhtar J.--I agree. Let notice be issued. order of the court In accordance with the view of the majority that the matter requires rehearing, issue notice to the respondent-State and the complainant Sher Ahmad to show cause why this review petition be not accepted. (MBC) (Approved for reporting) Re-hearing ordered.

PLJ 1993 SC 38 [AppellateJurisdiction] PLJ 1993 SC 38 [AppellateJurisdiction] Present: SiiAFiuR rahman, saad sagoo jan and muhammad rafiq tarar, JJ WAPDA-Appellant versus Major ATA MUHAMMAD KHAN and 8 others-Respondents Civil Appeal No. 744 of 1990, accepted on 2.11.1992 (approved for reporting on 17.11.1992) [On appeal from judgment of Lahore High Court, dated 7.6.1988, passed in R.S.A. No. 62 of 1964] Land Acquisition Act, 1894 (I of 1894)- —S.18(3)--Acquisition of land for WAPDA-Award challenged by Provincial Government before High Court-Whether appeal was competent-Question of—A party (Provincial Government) which had been given right of appeal, had come before High Court and a party (WAPDA) not given right of appeal, had not come in appeal-Held: To say that appeal preferred by Provincial Government was incompetent, could not be legally proper because notwithstanding fact that land was required by WAPDA, dissatisfaction with award was of Provincial Government-Held further: There was no defect in appeal as such and it was competent-Appeal accepted and case remanded to High Court for decision of appeal on merits. [Pp.40&41]A,B&C PLD 1987 SC 485 and 1991 SCMR 2193 discussed. Syed fftikhar Ahmad, Advocate, Supreme Court, instructed by Syed fnayat Hitssain, AOR for Appellant. Mr. Jav><wad Kliawaja, Advocate, Supreme Court, instructed by Mr. Ejaz Ahmad Khan, AOR for Respondents. Dates of hearing: 1 and 2.11.1992. judgment Shafiur Rahman, J.-Leave to appeal was granted to examine whether the decision in Pir Khan through his legal heirs versus Military Estate Officer, Abbottabad and others (PLD 1987 S.C. 485) was correctly invoked for deciding the Regular Second Appeal filed by the Provincial Government before the High Court by its judgment dated 7.6.1988. 2. The land in dispute located in Multan was acquired under the Land Acquisition Act for WAPDA. The Land Acquisition Collector Multan gave an Award. The Provincial Government objected to the award and filed a Reference application under sub-section (3) of Section 18 of the Punjab Land Acquisition Act. It was adjudicated upon by the District Court on 5.5.1964 whereby the Reference of the Provincial Government for reduction of the Award price was rejected and the compensation awarded by the Collector remained intact. The Provincial Government filed an appeal in the High Court under Section 54 of the Land Acquisition Act. It came up for disposal and the High Court declined to entertain it declaring it to be incompetent observing as hereunder:-- "It is pertinent to note that the WAPDA, for whose sake, the land was acquired, neither objected to the award by filing a reference nor filed any appeal against the judgment of the learned District Judge. Admittedly, the amount of compensation for the land acquired is to be paid by the WAPDA, which is independent from the Province of West Pakistan (now Punjab). We are of the view that the Punjab Province cannot maintain this appeal, as it is not, in any way, affected either by the award made or by the impugned judgment. In support of this view, the rule of law laid down in Pir KJian vs. Military Estate Officer, Abbottabad and others (PLD 1987 S.C. 485) may be referred to. The appeal is, therefore, incompetent and is dismissed with no order as to cost as the land owners/respondents have not entered appearance to contest this appeal." 3. The judgment given in Pir Mian's case (PLD 1987 S.C. 485) related to the North-West Frontier Province where the local amendments made in the Land Acquisition Aet had created a materially different position at different stages. In the Punjab Province the history of law with regard to land acquisition has been reproduced in fftikhar Hussain Shah and others versus Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (1991 S.C.M.R. 2193). It was pointed out therein thai in the Province of Punjab, by Act XII of 1954, subsection (3) to Section 18 was added and new Section 22-A was introduced in the Land Acquisition Aet whereby the right to file a Reference under Section 18 and to file Cross Objections under Section 22-A was conferred on the Provincial Government, or a local authority or a company for which the land was acquired. By President's Act IV of 1957, the local authority and the company were deprived of the right to file a Reference or Cross Objections leaving in the field only the Provincial Government. Finally, by Ordinance XLIX of 1969 in the whole of West Pakistan sub-section (3) of Section 18 and Section 22-A were so amended as to leave the power of Reference with the Provincial Government. A party which had been given the right of appeal had come before the High Court in appeal. A party not given the right of appeal had not come in appeal. In this context to say that the appeal preferred by the Provincial Government was incompetent could not be legally proper because notwithstanding the fact that the land was required by WAPDA, the dissatisfaction with the award was of the Provincial Government. A party competent to file and agitate against the award had in fact agitated against it. There was no defect in appeal as such. •5.' Pir Klian's case (PLD 1987 S.C. 485) could be relevant in the context only to the extent that a party having a right of Reference has necessarily a right of appeal. In the appeal filed by the Provincial Government before the High Court both the conditions were satisfied. Hence, the appeal was competent. 6. We accept the appeal, set aside the judgment of the High Court and remand the case to the High Court for a decision on merits if the Provincial Government continues to be interested in pursuing it. No order is made as to] costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 41 PLJ 1993 SC 41 Present: SAJJAD AM SHAH AND SALEEM AKHTAR, JJ. EASTERN FEDERAL UNION INSURANCE CO. LTD.~Appellant versus AMERICAN PRESIDENT LINES LTD. and another-Respondents Civil Appeal No. 641-K of 1990, dismissed on 8.3.1992 (approved for reporting on 30.6.1992) [On appeal from judgment and order of High Court of Sindh, dated 7.12.1989, in Revision Application No. 65 of 1984] (i) Carrier of Goods by Sea Act, 1925 (XXXI of 1925)-- -—S. 3-Import of goods-Short delivery of goods-Suit for damages-Suit decreed hut decree set aside by High Court in revision—Challenge to—Law has given choice to carrier to enter particulars declared by shipper or not lo enter them and further protects carrier by making shipper liable for compensation for misrcpresentation-If number of packages and nature of goods are mentioned in bill of lading, then words "said to contain" or "particulars furnished by shipper", "cy/cy" and similar notations will not permit carrier to dispute Prima fade character of bill of lading issued in prescribed manner-Bill of lading, in this case, was admittedly marked with notation "cy/cy, STC" which Prima facie established that containers were stuffed exclusively by shipper-­ Held: Respondents have proved by cogent evidence that containers were discharged at Karachi with seals intact, and appellant has not produced any evidence in rebuttal to prove number and condition of bales stuffed in containers-Appeal dismissed. [Pp.63,64&65]E,F&G (ii) Damages- —Import of goods-Short delivery of goods-Suit for damages-Suit decreed but decree set aside by High Court in revision-Challenge to—If carrier issues bill of lading in prescribed manner, then in case of non-delivery, short delivery or , damage to cargo, bill of lading will be a prima facie evidence of particulars mentioned in it—If carrier wants to be relieved of such prima facie evidence, it must produce evidence in rebuttal-Held: Carrier's failure to rebut prima facie evidence will make such particulars in bill of lading binding on it-Held furthenWhere carriers take liberties with statute or insert clauses which exonerate them from statutory duty, responsibility or liability, same cannot dislodge prima facie nature of bill of lading. [Pp.57&58]D (1939) AC 277, (1961)2LLR 173 = 1962 AC 60, (1986) 2 LLR 281, (1988) 1LLR 206 and 1957 AMC 611 (2nd dr. 1957) discussed PLD 1969 Karachi 495, PLD 1975 Karachi 819 and PLD 1983 Karachi 29 approved. (iii) Damages-- —Import of goods—Short delivery of goods—Suit for damages—Suit decreed but decree set aside by High Court in revision—Challenge to—Main question involved in case is whether a carrier which carries cargo in containers under bill of lading, giving number of containers loaded and also particulars of cargo stuffed in it, is bound to deliver only number of containers as shown in bill of lading or cargo as described in bill of lading contained in container—Judge, Small Cause Court held that respondents were liable to deliver same goods viz. 213 bales in same order and condition as mentioned in bill of lading—Learned Single Judge in revision, held that by mentioning number of cartoons/packages in bill of lading, carriers did not admit correctness of statement—Held: Question of per package limitation of liability of carriers does not arise as even if each bale is treated as package, amount claimed by appellani is much less than maximum limit fixed by law. [Pp.43,44,45&48]A,B&C (1967) 2 LLR 193, (1971) 2 LLR 476, (1975) 1 LLR 199, (1973) 2 LLR 428, (1975) 1 LLR 295, (197?) 1 LLR 93, 1977 AMC 1807, 1975 AMC 123, (1975)2 LLR 512, (1974) 1 LLR 119 and 1990 AMC 177 discussed. Mr. Muhammad All Sayeed, Advocate, Supreme Court, and Mr A. Aziz Dastgir, AOR for Appellant. Mr. A.A. Shariff, Advocate, Supreme Court, and Mrs. Majida Rizvi, AOR for Respondents. Date of hearing: 23.12.1991. judgment Saleem Akhtar, J.--This is one of those cases in which the claim amount is insignificant but the principle and question of law involved is of great importance. 2. The appellant is an Insurance Company which had issued policy of insurance in respect of goods imported by the consignee who has not been made a party as the claim was subrogated in its favour. M/S Ishaq M. Sadro & Company imported 213 bales of second hand clothing which were stuffed in two containers and carried on board vessel S.S. PRESIDENT TYLER under bill of lading issued by Respondent No. 1, the owner of the vessel of which Respondent No. 2 is the local agent -at Karachi. The goods were transhipped on board s.s. PRESIDENT ROSEVELT' which arrived at Karachi on 8.10.1981 and discharged Karachi bound containers including the containers in suit. At the time of taking delivery the clearing agent of the consignee noticed that two bales had short-landed and Karachi Port Trust issued a short-landing certificate dated 6.8.1982 but also manifested goods of the same description under nil marks. The consignee made a claim for Rs. 3.956/-, but as the respondents denied it, the appellant who had insured the carriage after obtaining letter of subrogation from the consignee filed suit against the respondents in the Court of Small Causes, Karachi. The respondents denied the claim pleading that the two containers as shown in the bill of lading were discharged at Karachi Port. They were inspected by the Surveyor M/s G.B. Potts & Company Limited and the seals on the containers were found intact which were opened in their presence. It was further pleaded that in addition to the public notice published in 'Dawn' the consignee's clearing agent viz. Sultan Enterprises were duly advised prior to arrival of the vessel to inspect the seels of the containers at the time of discharge from the vessel and to be present at the time of destuffing of the containers. It was stated that the shipper had stuffed the goods in the containers in its own premises and had sealed them. The particulars in the bill of lading were inserted as declared by the shipper. The respondents denied that they were aware of the nature, value, quantity or quality of the goods. It was further submitted that the carriers having discharged the sealed containers in the same order and condition in which they were received at the port of shipment were not liable for the shortage of two bales which in fact were outturned under nil marks. The learned Trial Court decreed the suit. The respondents then filed a revision petition against the said judgment and decree in the High Court which was allowed by the learned Single Judge by the impugned judgment dated 7.12.1989 and the judgment of the learned Judge.of the Small Causes Court was set aside. Leave to appeal was granted to the appellant to consider the question whether under the bill of lading issued by the carrier it was required to deliver two containers or 213 bales of second hand clothing. Although the leave granting order refers to the contention regarding per package limitation of liability of the carrier under law this question is not at all relevant nor was it at any stage raised, pleaded or considered. 3. At the outset it may be clarified that in the present case the question of per package limitation of liability of the carrier is not at all involved. The main question is whether a carrier which carries the cargo in containers under bill of lading giving number of container loaded and also the particulars of cargo stuffed in it with qualifying remarks like CY/CFS and STC is bound to deliver only the number of container as shown in the bill of lading or the cargo as described in the I bill of lading contained in the container. 4. Reverting to the facts and circumstances of the case and the question involved it is necessary first to examine the bill of lading which evidences the terms and conditions on which the parties had agreed carriage of goods. The relevant particulars in the bill of lading were mentioned as follows:- "Marks & relevant container No. No. of Description of packages packages Gross weight Measu­ rement Geem Gaba Two Containers Parti- 26895 1076' Lahore ally Stc: (CY/CFS LES 30. Pakistan 213 bales second 12199 469 hand clothing KGS m3 (excluding travelling dues) as per supplier's proforma invoice dated 13-7-1981. L/C No. 10053/0126. laden on Board/ Freight prepaid As is obvious abbreviated remarks such as STC and CY/CFS have been mentioned in the bill of lading which require explanation before considering contentions of (he parties. According to the Marine Encyclopaedia Dictionary by Eric Sulivan Second Edition, the following terms means:—"S.T.C. Said to contain CY/CY Container yard/container yard. Container is delivered from one yard to another. C.F.C. Container Freight Station. SL&C Shippers load and count. 5. Where CY/CFS is mentioned it means that the goods were stuffed in the container by the shipper in his yard and that the container is to be delivered at containers freight station. There is no dispute on the fact that the containers belonged to Respondent No. 1 and they were supplied to the shipper who had taken them to its yard and stuffed the goods in it without any association, participation or supervision of the carrier. After stuffing the goods they were sealed by the shipper and such sealed containers were delivered to Respondent No. 1 for carriage which issued the bill of lading without examining or checking the cargo stuffed in the containers. 6. The learned Judge of the Small Causes Court came to the conclusion that containers supplied by the carrier were no better 'than' the one where the goods are stowed in one of the holds of the ship itself and held that the bill of lading was prima facie evidence of the goods mentioned in it and the respondents were liable to deliver the same goods viz 213 bales in the same order and condition as mentioned in the bill of lading. The suit was accordingly decreed. However, the learned Single Judge in revision application did riot agree with the treatment that CY/CFS 'entries in the bill of lading do not mean that actually the bales or cartons were stuffed inside the containers'. The observations in (1979) MLJ 220,j (1981) 2 MU 315 and (1981) 1 ILR 206, were followed where according to the 1 impugned judgment it was held that by mentioning the number of cartons/packages in the bill of lading (with CY/CFS) the carriers did not admit the correctness of the statement'. It was further observed:- "I have also adverted to above that the bills of lading (Exts. 8, 8 and 9 respectively) are also no admission of the carriers about the number of bales/cartons having been stuffed in the containers. They only indicate the bales/cartons were stuffed in the containers. These do not mean that cartons/bales were stuffed in the containers." Finally it was concluded:— "For the reasons mentioned above, disagreeing with the Judge, Small Causes Court, I hold that there is no legal evidence of the actual quantity of hales of second-hand clothing and cartons of infant milk stuffed in the containers. The documents relied upon by the trial court in coming to the conclusion that bales/cartons were stuffed in containers are not such documents from which such a conclusion can be legally arrived at. Since, there is a want of legal evidence on this point, I hold that the plainliffs/respondents have failed to prove that there was short delivery of two and one bales of second-hand clothing and eight cartons of infant milk." 7. Mr. Muhammad Ali Sayeed, the learned ASC, for the appellant and Mr, A.A. Shariff, the learned ASC for the respondents have ably argued the case and put forth their view point and referred several authorities particularly the American decisions in support of their arguments. It is an admitted position that the case is governed by the United States Carriage of Goods by Sea Act, 1936 (COGSA), which with minor modification is identical to Hague Rules which were enacted as Carriage of Goods by Sea Act, 1924, in England and Carriage of Goods by Sea Act, 1925, in the Indian Sub-Continent and is now applicable to Pakistan. In Britain 1924 Act has been repealed and replaced by Carriage of Goods by Sea Act, 1971, which incorporates the provisions of Hague/Visby Rules. With this background we have only to restrict ourselves to the provisions of the US Act but assistance and guidance can be sought from the judgments from other jurisdictions having similar law. 8. Mr. Muhammad Ali Sayeed, the learned ASC contended that the , respondents were legally bound to deliver 213 bales of second hand clothing to the consignee. Mr. A.A. Shariff however, contended that the shipper had received two sealed containers which were delivered to the consignee in the same order and condition in which they were received, therefore, the respondents have discharged their liability as they were not bound to deliver 213 bales. According to the learned counsel for the respondents each container should be treated as a package and the carriers were responsible to deliver two packages only as the particulars of the contents of the containers were mentioned in the bill of lading on the declaration made by the shipper which in the circumstances of the case could not be verified and was not binding. It is on the basis of this contention that the entire argument drifted to a channel where the parties from the High Court upto this appeal wrestled whether container can be called a package. The carriage through containers has become an accepted, viable and more convenient mode of transportation of goods by Sea, for the last more than two decades. Since then this package problem with reference to limitation of liability of carriers as provided by the Hague Rules enactment has attracted the attention of the Courts and shipping world. The courts are engaged in resolving this knotty question by interpreting the provisions of law and in USA till late conflict of decision has surfaced in the judgments of District Courts and Courts of Appeal of various states. The dust now seems to settle down but the final verdict from the apex Court is yet to come. On the other forum the shipping world and maritime nations showed their anxiety and concern with the fluid state in determining per package liability of the carriers caused due to 'Container revolution' as it was ielt that Hague Rules could not meet this problem adequately and determinatively. This led to a diplomatic conference at Brussels in 1967 to consider various martitime conventions including amendments in the Hague Rules. Finally the Diplomatic Conference on Maritime law held at Brussels in February 1968 adopted limitation of liability equivalent to $ 66200 per package or unit or 90 cent per pound whichever is higher. It also passed the following provision to solve the container problem.:-- "Where a container, pallet or similar article of transport is used to consolidate goods, the number of packages or units enumerated in the bill of lading as packed in such article of transport shall be deemed the number of packages or units for the purposes of this paragraph as far as these packages or units are concerned. Except as aforesaid, such article of transport shall be considered the package or unit." The Brussels Protocol, 1968, known as Visby Rules amended Brussels Convention 1923 (Hague Rules) and has attempted to provide a determinative solution of container problem and perhaps relieving the Courts of embarrassing situation which were required to offer a solution by interpretation for a revolutionary situation which was new and perhaps not contemplated when Hague Rules were framed. However, the difficulty still persists as the Visby Rules are yet to find legislative enactment by several countries. Britain has already incorporated it in its Carriage of Goods by Sea Act, 1971. US and Pakistan have not. The following provisiqns of US Carriage of Goods by Sea Act, 1936. have been referred and require interpretation:- "Sect. 3-Responsibilities and liabilities of carrier and ship. (1) (2) .. (3) Contents of bill. After receiving the goods into his charge the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things:-- (a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage. (h) Either the number of packages or pieces, or the quantity or weight, as the case may be, as furnished in writing by the shipper. (c) The apparent order and condition of the goods: Provided, that no carrier, master, or agent of the carrier, shall be bound to state or show in the bill of lading any marks, number, quantity or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received or which he has had no reasonable means of checking. (4) Bill as prima facie evidence. Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraphs (3) (a)(b) and (c) of this section: Provided, that nothing in this chapter shall be construed as repealing or limiting the application of any part of Sections 81 to 124 of Title 49. (5) ..................................... (6) (7) .. (8) Limitation of liability fornegligence. Any clause, covenant, or agreement in a contract of carriage relieving the carriage or the ship from liability for loss or damage to or in connection with the goods, arising from negligence, fault or failure in the duties and obligations provided in this section, lessening such liability otherwise than as provided in this chapter, shall be null and void and of no effect. A benefit of insurance in favour of the carrier, or similar clause, shall be deemed to be a clause relieving the carrier from liability. 46 US Code Appendix 1303. 0) ................................................... (2) ............................... - .................... (3) ...................... - ............................. (4) ....................................................... (5) Amount nf liability; valuation of cargo. Neil her the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $ 500 per package lawful money of the United States, or in case of goods, not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier.By agreement between the carrier, master or agent of the carrier and ihc shipper another maximum amount than that mentioned in this paragraph may be fixed: Provided, that such maximum shall not be less than the figure above named. In no event shall the carrier be liable for more than the amount of damage actually sustained. Neither the carrier nor the ship shall be responsible in any event for loss or damage to or in connection with the transportation of the goods if the nature or value thereof has been knowingly and fraudulently misstated by the shipper in the bill of lading. (6) ..................................... " The issue involved in the case attracts Section 3 of COGSA while reference to Section 4(5) and the judgments cited at the bar seem to be relevant for understanding the meaning of the word 'package'. The question of per package limitation of liability of carriers does not arise as even if each bale is treated as a package the amount claimed by the appellant js much less than the maximum limit fixed by law. First we will examine the judgments of US Courts on question what is a package. 9.. In Standard Electro S.A. vs. Hamburg , Sudatnerikansiche (1967) 2 LLR 193, the entire shipment consisted of nine pallets each containing six card-board cartons of 40 tuners. In the shipping documents number of package was given as '9 pallets'. Seven pallets were not delivered and the carrier admitted its liability. The only question to be decided was the liability of the carrier in terms of Carriage of Goods by Sea Act, 1936, which under Section 4(5), 46 U.S.C. Section 1304(5) limits recovery to $ 500 per package. The question arose when a container is to be considered a 'package' for the purposes of that limitation. Chief Justice Lumbard of the Court of Appeal (Second Circuit) speaking for the majority held that each pallet was a package for the following reasons:-- (1) The parties regarded and characterised each pallet as a package, which was proved from the shipping documents and claim letter of the shipper. (2) The shipper and not carrier chose to make cartons into pallets. The number of insured cartons was not mentioned in shipping documents and, thus, no notice of the number of carton was given to the carrier. (3) Under Section 4(5) of COGSA shipper could have obtained full coverage by declaring nature and value of goods, and (4) Since 'package' fairly intended pallets in the case it is not relevant that Section 4(5) might not have seen that application when enacted. Analyzing Section 4(5) COGSA it was observed that its 'purpose was to describe a unit that would he fairly uniform and predictable in size and one that would provide a common sense standard so that the parties could easily ascertain at the time of contract.' 10. The same Court later considered the same question in the Leather's Best Inc vs. Tlu> MOR-MA_CLYNX & others (THE MORMA CLYNX) (1971) 2 LLR 476 in which the shipper/seller's employee loaded 99 cartons of leather in the container supplied by the carrier and sealed in the presence of the truck driver of carrier's agent. In the bill of lading as under column number and kind of packages the particulars were given as:~ "1 Container STC 99 bales of leather" As at the time of delivery the container was found empty, the carriers were sued which pleaded that their liability was limited to $ 500 for the entire container. Referring to Standard Electra(supra), it was observed that the fact that there was nothing in this case to show that the parties had agreed to treat container as package (as in Standard Electra) was not a satisfactory distinction and it was observed:— " the purpose of Section 4(5) COGSA was to set a reasonable figure below which the carrier should not be permitted to limit his liability and that 'package' is thus more sensibly related to the unit in which the shipper packed the goods and described them than to a large metal object, functionally a part of ship, in which the carrier caused them to be 'contained' " THE S.S. MORMA CLYNX (The Leather's Best) propounded the view that the nature and use of containers makes them functional part of the ship but Article 4(5) of COGSA refers to shipper's own packaging which is an integral part of his shipment. Thus, the carrier owned or supplied containers should not be considered a package as it is against the spirit and language of this provision. And further where shipper's own packing units can be shipped in their original packing even if they are stowed in a container, the presumption would be that container is not a package and it is for the carrier to rebut it. 11. This judgment was followed in Shinko Bolki Co. Limited Vs. S.S. Pioneer Moon ami United Siaies Line Inc. (1975) 1 LLR 199. The shipper had filled 24 tanks supplied by the carrier with liquid latex in the presence of their representative. In the bill of lading number of packages were shown 24 and the particulars and description were given as 'lift on lift off tanks synthetic latex said to weigh 359, 170" Ibs.' The freight was charged on the basis of this weight. The bill of lading provided that 'package' included containers, van, trailers, pallatized units.,.." On arrival 11 tanks were found damaged and contents totally lost. In the suit filed by the plaintiff the carrier pleaded limitation of liability to $ 500 per tank. The District Judge accepted this plea but the Court of Appeals for the Second Circuit allowing the appeal observed:— "Shipment in the 2000 gallon tanks furnished by the ship is more closely analogous to shipment in its deep tanks than to transportation in the shipper's drums. The tanks were the carrier's property, used on voyage after voyage, not included in computing the freight charges, and apparently filled while under th? supervision of a representative of the carrier. In practical effect they were a smaller and movable version of the deep tanks. They were 'functionally part of the ship' every bit as much as the metal container holding 99 bales of leather on the Mormaclynx, sup. (1971) 2 Lloyd's Rep. at page 486; 451 G.2d at 851. If, as we hold, the tanks furnished by the carrier were not packages, the quoted provision from the bill of lading could not make them so, 46 USC s. 1303(8); in any case, we believe the liquid latex was within the exception for 'goods shipped in bulk'. Our decision is not inconsistent with Roval Typewriter Co. vs. A/7F Kulmerland, 483F. 2d 645 (2 Cir. 1973); (1973) 2 Llyod's Rep. 428, on which the defendant relied. The bill of lading in the case read only '1 container said to contain Machinery,' 483 F.2d at pp. 646 and 430, and gave the carrier no notice of the number of cartons contained therein for which the shipper sought to collect $ 500/- each. Here the weight was clearly stated. Moreover, the 'functional economic test' there announced affords little help with respect to the bulk shipment of a liquid." This question had come up for consideration earlier in Royal Typewriter Co. Division Lilian Business System Inc. vs. MV KULMERLAND and Hamburg Amerka Lint' (THE KULMERLAND (1973) 2 LLR 428. The plaintiff's 350 adding machines in cartons were stowed by its agent in his container at West Berlin which was sealed by him and transported to Hamburg where it was loaded on defendant's m.v. KULMER LAND .. The bill of lading read "one container said to contain machinery but the number of packages stowed in it were not mentioned. As a! New York contents were found missing the carriers conceded their liability to compensate the plaintiff but pleaded that it was limited to $ 500 per container which was a package. This plea was upheld by the District Judge and affirmed by this judgment. The main consideration being that the container was intended by the shipper to be the basic cargo unit and the carrier was not notified as to the nature and value of goods transported. The following observation illustrates the view point with reference to other judgments on this issue: "The statutory purpose here leads us to suggest what for want of a better terms we will call the functional economics test. In this regard, the first question in any container case is whether the contents of the container could have feasibly been shipped overseas in the individual packages or cartons in which they were packed by the shipper. Here it is plain that they could not feasibly have been shipped in those individual cartons; adding machines are a delicate product—their little cardboard cartons, stapled and proper taped, had never been shipped as such, in the days before containers they were shipped in wooden crates or case containing 12 to 24 each. The metal containers in which the cartons were shipped in lots of 350 per container are essentially to be likened to the wooden crates or cases of days past; the use of the metal container of convenience to shipper and carrier alike was selected by the shipper and used without carrier objection. This court, in a different factual context in Nichimen Co. vs. A/.K Farland, 462 F.2d 319, 334 (2d Cir 1972) referred to Black's Law Dictionary 1262 (4th ed. 1951) which defines a package as a 'bundle put up for transportation or commercial handling ... thing in form suitable for transportation or handling. 'Until the adding machine cartons were packed in the container in question they were not suitable for ocean transportation or handling. We suggest underlying Leather's Best sup. is the concept that the 'bales' there could have been shipped individually rather than in the container ultimately held not to be a 'package'. See note 9 sup. Here, however, the individual cartons containing one adding machine each were simply not packing units suitable for overseas shipment. We view Leather's Best as holding that, where the shipper's own packing units are functional, a presumption is created that a container is not a 'package' which must be overcome by evidence supplied by the carrier that the parties intended to treat it as such. Thus, this case is clearly distinguishable from Leather's Best. When, as here, the shipper's own individual units are not functional or usable for overseas shipment the burden shifts to the shipper to show why the container should not be treated as the 'package'. The Shipper has not met that burden here. While in Standard Electra it is unclear whether or not the cartons could have been shipped as a practical matter in the absence of pallets, note 9 sup. we treat that case, in its own language as one in which the parties' apparent intent was given 'considerable weight,' 375 F.2d at 946, the pallets there were characterised by the parties as package. Absent shipment in a functional packing unit, the burden is on the shipper to show by other evidence that his units are themselves 'package'. Only then does custom and usage in the trade, the parties' own characterisation or treatment of the items being shipped in supporting documentation or otherwise, and any other factor bearing on the parties' intent become relevant, as in Standard Electra, or Leather's Best. The 'functional package unit' test we propound today is designed to provide in a case where the shipper has chosen the container a 'common-sense test' under which all parties concerned can allocate responsibility for loss at the time of contract, purchase additional insurance if necessary, and thus 'avoid the pains of litigation." The above passage has been reproduced to illustrate the divergence of view in two leading cases viz. the Leather's Best and the KULMER LAND (The Royal typewriter). The divergence is basically with regard to the nature of packing used by the shipper. 12. Yet another case in the same line is Cameco vs. S.S. American Legion (1975) 1 LLR 295. The judgments advocating the functional economic test were rejected by Matshushite Electric Corporation vs. S.S. Aegies .Spirit (1977) 1 LLR 93 and Yeramex International vs. S.S. Tendo, 1977 AMC 1807. The Aegies Spirit (1977) 1 LLR 93 decided by the District Court, Western District of Washington related to shipment of colour TV, stereophonic equipment and other electrical appliances. The vessel was time chartered to Tokai Shipping Co. (Tokai). The shippers had packed the goods in cartons and stuffed in the containers owned by Tokai. The bill of lading described number of containers or packages as '2 containers'. L'nder the column 'kind of package; Description of good' the following notations were made:-- "SHIPPER LOAD COUNT AND SEAL Said to containCT 301 (120 C/t) Colour TV." Similar particulars in respect of other four containers were also given and at the end total number of 601 cartons was mentioned with 27,722 Ibs as gross weight and 3619'-3" as measurement. The bill of lading provided that where the cargo has been packed in container by the merchant, for purposes of limitation of liability the number of such container(s) shown on the face of bill of lading shall be considered as number of packages. The carrier by a separate letter of guarantee acknowledging shipment of electrical goods in container agreed and undertook that its liability would be $500 per package contained in the containers. It was observed that the functional economics test envisaged by the Royal Typewriter and Cameco is 'an unsatisfactory guide' either under the policy and provision of COGSA or realities of maritime industry. The nature of shipper's packaging cannot be basis to create presumption that container is not a package. The law recognizes 'goods shipped in package and goods not shipped in packages.'

It also rejected on the ground that intent of parties as revealed by available evidence cannot be a touchstone as it cannot override the provision of COGSA and 'it is not the parties' characterization of the shipment but the Court's interpretation of the Statute.' In this judgment the 'functional economics test' propounded by the Leather's Best was not followed and other judgments following it as stated above were severely criticized and rejected in the following words:— "Accordingly, and for the foregoing reasons, I reject the 'functional economies' test as contrary to the statute commercially impracticable and unwise." After referring to the observation in Leather's Best reproduced in the earlier part of this judgmenl it was observed.:-- "Certainly, if the individual crates or cartons prepared by the shipper and containing his goods can rightly be considered 'package' standing by themselves, they do not suddenly lose that character upon being stowed in a carrier's container. I would liken these containers to detachable stowage compartments of the ship. They simply serve to divide the ship's overall cargo stowage space into smaller, more serviceable loci. Shipper's packages are quite literally 'stowed' in the containers utilizing stevedoring practices and materials analogous to those employed in traditional on board stowage. The logic of this view is made plainer yet upon noting, as previously discussed in Sumitomo, that Tokai's bills of lading cover every piece of cargo packaged by Matsushita/Japan but in no way affect title to the containers, which remains in Tokai. This fact underscores the fundamental distinction between the shipper-packaged goods and the carrier owned containers. The Ninth Circuit in Hartford reasoned that 'package' must be given its plain, ordinary meaning. I now hold that the individual cartons stowed within the Tokai containers constitute the COGSA packages to which the $ 500 limitation applies, and that this reflects the plain, ordinary meaning of this term. In this context we would refer to some ot judgments cited by Mr. A.A. Shariff where a container was ld to be a package, in Eastern Kodak Co. vs. S.S. Transmarine, Trans American Steamship Corporation and American Union ranspor Inc. Piltson Stevedoring Corporation, 1975 AMC 123, and 77?e Brooklyn Mam (1975) 2 LLR 512 following the 'functional conomics test' the cases placed inside the container were not found to be suitable for overseas shipment in their original packing and, therefore, container was held to be a package. A container was considered to be a package where only one shipper stowed that goods in the container without participation or supervision of the carrier and declared it to be as one container with remark SLC. Refer. Rosenbmnch vs. American Export Isbrandtsen Lines Inc. (1974) 1 LLR 119. In Santinel Enterprises Inc. vs. m.v. Smo Matavulj Her Engine Etc. and Barber Blue Sea & S.P. Shipping Co, Limited. 1990 AMC 177 US District Court, (Southern District Court, New York) the goods were stuffed in the container by the shipper describing total number of container as 'one (1) container only 1 and the bi!! of lading provided that shipper stuffed and sealed container shall constitute a package, fnspite of the fact that the bill of lading elsewhere indicated the number of articles packed in the container, the container was held to be a package. 13. William Teilay in Marine Cargo Claims, 3rd Edition, at page 642 commented that 'functional economic test' envisaged by Leather's Best S.S. Pioneer Moon, Royal Typewriter (V. Kulmer Land) and Cameco (S.S. American Legion) has been rejected in the following cases:-- 1. Matsitshite Electric Corporation vs. 5.5. Aegis Spirit, (19771 1 ILR 93 (W.D. Wash, 1976). 2. Yciwnex International vs. S.S. Tendo 1977 AMC 1807 (E.D. va 1977). 3. Mitsui & Co. vs. American Export Lines, 1981 AMC 331 (2 Cir. 1981). 4. Sniythgrehound vs. M/Veyrtgenes, 1982 AMC 320 (2 Cir. 1981). 5. All State Ins. Co. vs. Inversaners Naviera Imparca, 1982 AMC 945 (5 Cir. 1981). 6. Vagas Campania Venezolana, 1984 AMC 1600 (11 Cir. 1983). 1. Binladen BSB Landscaping vs. M/s Nedlloyds Rotterdam, 1985 AMC 2113 (2nd Cir 1985). 8. Hayes-Legal Assocs vs. M/s Oriental Knight, 1986 AMC 1724 (11 Cir. 1985). 9. Inter Ocean (Free Zone) vs. Manaure Lines 615 F. Supp. 710 (SD Fla 1985). From the observations and principles envisaged in the aforesaid judgments of the US Courts, William Tetley in Marine Cargo Claim (supra) concluded as follows:-- "American Courts advanced a number of theories, particularly the functional package test (also known as the functional economics test) .which has fortunately been rejected even by the Second Circuit which originally proposed it. Now US Courts generally accept the packages to be each package inside the container if the number of packages is listed on the face of the bill of lading. On the other hand, if under the column entitled number of packages on the face of the bill of lading, it reads one container, then the package is the container. In the US the Court may also look at the customary freight units."Carver in Carriage of Goods by Sea Act, Volurne-I, 13th Edition, referring to the 'functional packing unit test' as Hasten View' and the other theory as the 'Pacific View' observed at page 395:— "In truth, there seems to be something to be said for the ha/y and not particularly instructive pacific approach, in plain English bad or inadequate packing is still packing and the result a package. But the Easiern view is to be preferred, perhaps, on the ground of simple applicability "and certainty; typical attributes of good common law principle, although linguistically difficult to justify; a baggage is baggage whether good, bad or falling apart." However. Article IV Para 5(c) of Hague/Visby Rules reproduced in the earlier part of the judgment seems to answer the knotty issue. Referring to it as adopted by the English Carriage of Goods by Se? Act, 1971, Carver observed.:--"Thus, the nations of the world have given judgment, and that judgment rejects the New York formula, by necessity implication, and adopts that of the pacific seaboard. It makes the pacific haze workable by the addition of the words in note 10, requiring the number of packages so consolidated to appear on the face of bill of lading." 14. As the word 'package' has not been defined in the Statute its plain dictionary meaning should first be ascertained. The meaning according to various dictionaries is as follows: The Marine Encyclopaedia Dictios^ry Supra. "Package- A general shipping term for cases, crates, bundles, bales, bags, kegs, dress, barrels etc. Chamber's 20th Century Dictionary. "Package- the act, manner or privilege of packing; a bundle, packet or parcel, a case or other receptacle for packing goods in. The Oxford English Dictionary. • "Package- A bundle of things packed up, whether in a box or other receptacle, or merely compactly tied up; esp. such a bundle of small or moderate size, as an item of luggage, a packet parcel. A case, casing, box or other receptacle in which goods are packed. Black's law Dictionary. "Package- A bundle put up for transportation or commercial handling; a thing in form to become as such an article of merchandise or delivery from hand to hand; a thing in form suitable for transportation or handling, or sale from hand to hand."Package- A bundle or parcel made up of several smaller parcels, combined or bound together in one bale, box, crate etc. A bundle or bale made up for transportation, sometimes holding only a single article. Something wrapped, boxed or crated, rather than merely covered. Two things' (1) a receptacle of whatever form or character and (2) the contents thereof. Strouds Judicial Dictionary. "Package- It must indicate something packed and in bill of lading cannot include cars put on board a ship without any box, crates or coverings 1 KB 459. From the aforesaid dictionary meanings and judgments a package may mean any object, article, thing, item, piece, bale, bundle, commodity or good, in any size, shape, weight or for, wrapped, chothed, covered, cased or packed not necessarily enclosed entirely, tied or contained so as to have distinct and separate entity or unit for purposes of loading, stocking, piling, stuffing, stowing or keeping in a container or hold irrespective of sufficiency of packing. This meaning does not solve the issue involved viz. whether each container was a package or each bale stuffed in it should be treated as a package. As a container, encased huge machinery, bale, bundle, carton and all other items enumerated above can be called package, its applicability and determination depends upon the facts and circumstances of each case. It cannot be ignored that the word 'package' occurs in a Statute which regulates the carriage of goods by sea providing rights, liabilities, immunities, limitations and duties of a carrier, shipper and consignee. It has, therefore, to be understood in this background and not in complete isolation. A carrier is to deliver what it has undertaken to carry. The determination of this liability is related to all such provisions which apply from the first step the parties take for transportation of cargo and continues till delivery. 15. Under Section 3 of Carriage of Goods by Sea Act, 1936, (COGSA) which is equivalent to Article III of Carriage of Goods by Sea Act, 1925, the carrier before the beginning of the voyage has to exercise the diligence to make the ship sea-worthy, properly man and equip and make the hold and all other parts of the ship in which goods are carried, fit and safe for reception carriage and preservation of the goods. The carrier is also required to carefully load, handle, store, carry, keep, care for and discharge the goods carried. Sub-Section (3) relates to the issuance of bill of lading. After the goods are received by the carrier its master or agent, on demand of the shipper shall issue a bill of lading to him. This sub-section prescribes the form and manner in which the bill of lading is to be issued. It should mention the marks and numbers which are provided by the shipper and should be clearly shown upon the goods or cases or coverings in which goods are contained. It must also state the number of packages or pieces or the quantity or weight as the case may be as 'furnished in writing by the shipper.Therefore, these particulars are based upon the declaration of the shipper. The carrier has also to state the apparent order and condition of the goods. This casts a duty upon the carrier to examine and observe the apparent condition of the goods and then state its remarks in the bill of lading. However, it is not mandatory on the carrier to state the marks, number, quantity or weight which he on reasonable grounds suspects that they do not accurately represent the goods actually received for carriage or where reasonable means of checking are not available. Therefore, a carrier is not bound to state the particulars mentioned in sub-section 3(a), (b) and (c) if he suspects their accuracy on reasonable grounds. The law provides the manner in which a bill of lading should be issued and also gives the liberty to the carrier to refuse to enter particulars declared by the shipper which it suspects to be incorrect. The effect of issuing a bill of lading in the prescribed manner is also given in sub-section (4), according to which such bill of lading is to be treated a prima facie evidence of receipt of the goods by the carrier mentioned in the bill of lading in accordance with paragraphs 3(a), (b) and (c) of Section 3. Thus, if the carrier issues bill of lading in the prescribed manner then in case of non-delivery, short delivery or damage to cargo the bill of lading will be a prima facie evidence of the particulars mentioned in it as required and if the carrier wants to be relieved of such prima facie evidence it must produce evidence in rebuttal. Carrier's failure to rebut the prima facie evidence will make such particulars in the bill of lading binding on it. The learned counsel for the respondents has laid great emphasis that as the bill of lading was issued with remarks CY/CFS and STC (Said to contain) the particulars mentioned therein are not binding. Where there is a notation of CY/CFS on a bill of lading it means that the carrier has supplied its containers to the shipper at his yard who has after stuffing and sealing it delivered at the carrier's container freight station for carriage which shall be discharged at carrier's container freight station at the port of destination. So far the notation STC is concerned, this shows that entry in the bill of lading has been made on the declaration of the shipper and further that carrier has not verified or checked it. These notations cannot relieve the carrier from the duties and liabilities cast upon it by virtue of Section 3, sub-section 3(c). Mere statement that marks, numbers, description and particulars of the goods were made on the declaration of the shipper does not discharge the burden placed upon the carrier. If the carrier wants to be exonerated from such liability created by issuing the bill of lading in the prescribed manner it must establish and rebut by producing satisfactory evidence to the effect that the particulars entered in such bill of lading were not correct. If it had reasonable ground to suspect the accuracy of the particulars declared by the shipper it was not bound to enter them in the bill of lading as provided by the proviso to sub-section (3). The fact that the carrier has entered in the bill of lading the declaration made by the shipper shows that prima facie it accepted it to be correct. Therefore, initially the burden is upon the carrier to show that the marks, numbers, weight or contents as mentioned in the bill of lading are not correct. The carriers issue bill of lading with remarks like i STC, SLC probably due to commercial convenience and competition between the! carriers and also to attract more customers and to provide facilities to the shippers. Therefore, where the carriers take liberties with the Statute or insert clauses which exonerate them from the statutory duty responsibility or liability the same cannot dislodge the prima facie nature of the bill of lading. Such remarks may however, make the carriers job of rebuttal easier. 16. The learned counsel for the respondent has referred to the judgment of the Privy Council in Canada and Dominion Sugar Company Limited Vs Canadian National Steamship Limited, (1946) 80 LLR 13. In this case the bill of lading was issued before loading was completed stating that the goods had been 'received in apparent good order and condition' qualified by the marginal notation that it had been 'signed under guarantee to produce ship's clean receipt'. The ship's receipt was issued with notation 'many bags stained, torn and resewen'. As the goods were delivered in damaged condition the plaintiffs endorsee made a claim. It was held that in view of notation the carriers were not estopped from adducing evidence that the goods were damaged before shipment. The reason advanced was that the notation conveyed that if the ships' receipt was not clean the statement in the hill of lading as to apparent order and condition could not be taken to be unqualified. While dealing with objection raised on construction of Article III of Rules Scheduled to Carriage of Goods by Sea Ordinance, and relying on Vita Food Protb'ct Inc. (1939) AC 277, it was observed that: " thtic was no evidence that the bill of lading was issued on shipper'sdemand as required by Rule 3. And further that there is indeed no law which prevents goods being carried at sea without any bill of lading (Vita Food Product sup at P. 294) or makes any particular form of bill of lading obligatory. It seems clear that the bill of lading here was what the parties intended and was in no sense unlawful and void." Again referring to Rule 4 Para 3 of the Rules Scheduled to the Carriage of Goods by Sea Ordinance (same as Article III Rule 4 of the Hague Rules) which makes bill of lading prima facie evidence it was observed:-- "The Rule, however, can have no practical application in this case. The bill of lading, as their Lordships have found, does not describe the goods as being received in apparent good order and condition, and there is no reason under the Rules or otherwise for refusing effect to the bill of lading according to its construction. In any case their Lordships like the majority Judges of the Supreme Court, do not see any reason to dissent from the view expressed by Scrutton, LJ, in Silver's case, sup - at page 425, that Rule 4 of Art. 3 has not the effect of allowing the shipowner to prove that goods which he has stated to be in apparent good order and condition on ••ihtpment were not really in apparent good order and condition as against people who accepted the bill of lading on the faith of the statement contained in it. " It is, thus, clear that in view of Vita Food Products hill of lading was held not to have been issued under the provisions of Carrier of Goods by Sea Ordinance of New Guinea and it was treated to be an agreement between the parties. It , therefore, follows that in such circumstances the principle of estopple was applied. While commenting upon this judgment it would be relevant to mention that the Privy Council did not treat the bills of lading subject to Hague Rules and they were enforceable according to their own term as they were not illegal according to New Foundland Law or by any other relevant law. According to Carver a different view may be possible. Tetley has termed Vita Food Products Inc, as a 'quite discredited decision today, which disregarded the mandatory nature of the Hague Rules.' He has relied on the following judgments. 1. The MORVIKEN (1933) I Lloyd's Report 1. 2. Dominion Glass Co. vs The Anglo Indian (1944) SCR 409, 1944 AMC 1407. 3. Ocean S.S, Co. vs Queensland State Wlieat Board, (1941) 1 KB 402, (1940) 68 Lloyd's Law Report 136. 17. The Attorney General Ceylon vs. Scindia Steam Navigation Co. 1962 AC 60 = (1961) 2 LLR 173 and Rederiaktiebolagesl Cmter Erikson vs Dr. Fawzi Ahmad Abou Ismail (Tlie Herroe and Askoe). (1986) 2 LLR 281, have followed the Chinese Antimony and Canada & Dominion Sugar Company. The same view has been expressed by the Supreme Court of New South Wales, Commercial Division. Australia in Ace Imports Pty Ltd. vs. Compania De Navega Coolfyds, Brasileim (Tlie Esmeralda I), (1988) 1 LL LR 206. 18. In Attorney General Ceylon, three bills of lading were issued giving the number of packages with a marginal note 'particulars declared by shipper'. Each bill of lading gave number of bags, leading marks, weight and description of _ content as 'full boiled rice 1953 crop'. The bill of lading contained printed clause 'the weight, contents and value when shipped unknown'. The Privy Council held j. that the bills of lading were not priina facie evidence of the weight shipped but only of the number of the bags shipped. It was observed that 'this was the result of the incorporation in the bills of lading of the provision, that 'weight' contents and value when shipped unknown' which was a disclaimer of knowledge about weight, ' contents and value. Reliance was placed on New Chinese Antimony Co. Limited, Tlie Herroe and Askoe, (1986) 2 LLR 281 also followed the same view. With respect we may observe that in Attorney General Ceylon and other similar judgments due note of the effect of the provisions of Carriage of Goods by Sea Act (Hague Rules enactments) has not been taken which provide in detail manner for preparing and issuing a bill of lading with option to the carrier not to mention _ such particulars which it suspects to be incorrect and Finally makes such bill of lading prima facie evidence of the prescribed particulars mentioned in it. These cases have relied upon New Chinese Antimony, (1917) 2 KB 664 which was decided before the enforcement of Hugue Rules enactment. It was decided on the basis of common law. In this case the qualifying words viz. 'weight measurement, contents and value (except for purposes of estimating freight) unknown' were printed in the body of the bill and were treated as term of contract. 19. Carver in Ms book 'Carriage of Goods by Sea' and 'Scrutton on 'Charter Parties' while commenting on the English Law does not seem to have expressed adverse view on the judgment of the Privy Council. However, Tetley does not favour the views expressed in Attorney General, Ceylon and has referred to Spanish American Skin vs. M/s Femgulf, 1957 AMC 611 (2nd Cir 1957) in which the bill of lading acknowledged receipt of 60 packages stating 'shippers' weight Nett 6.7.2.8" with a rubber stamp reading 'Steamer not responsible for weight, quantity or condition of contents. The Court held that the bill of lading was prima facie evidence of number and weight. Referring to COGSA provision particularly Section 3(3)(c) the court observed: "The carrier must utilize that method, rather than the quite general reservation attempted here. The purpose of the Act to promote uniformity and negotiability of the ocean bills of lading includes a purpose to eliminate the practice of rubber stamp exceptions, limiting carrier liability." According to Tetley this view has been taken in France, Belgium and Greece and he has referred to judgments of those countries at page 289. He finally commented: "The decision in Spanish American Skin vs M/s Ferngulf seems preferable to the finding in A.G. of Coylon. This is because the Hague and Hague/Visby Rules are relatively clear. The carrier is not obliged to state a weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking, (last para of art. 3(3). By art. 3(8), the obligation of Art. 3(3) cannot be lessened. In any event, the courts will weigh all the evidence and require both parties to provide all the proof available to them, because the claused bill of lading at best creates a presumption but cannot create an estoppel, even in the hands of third . parties for value." The view of the learned author seems to be in accord with the spirit and language of COGSA and Hague/Visby Rules. Any remark, covenant or agreement which is in conflict with Section 3(3) (a)(b)(c) lessening, reducing or diminishing carrier's liability or duty imposed by these provisions will be void. Mr. Shariff has referred to The National Electric Radio Refrigeration Company (Pakistan) Limited vs M/s Sachilia Laurs, Naples (Italy) & 3 others, PLD 1977 Karachi 264 and relied on the observation that 'by issuing a clean bill of lading there can be no presumption as to the contents which were not apparent on inspection.' It may be clarified that in the referred case as the Carriage of Goods by Sea Act was not applicable it was decided on the basis of the Contract Act and, therefore, reliance was placed on New Chinese Antimony. This judgment is not an authority in respect of bill of lading to which Carriage of Goods by Sea Act or Hague Rules are applicable. Once applicability of this Act is excluded the prima facia character of bill of lading as provided by Article III Rule 4 is lost. Here we may refer to Yar Mohammad Janoo & Co. vs. Maldivian National Corporation (Ceylon) Limited, PLD 1969 Kar. 495; Deutche Danpschiti Faharts - Gesellscheft vs Central Insurance Company Limited, PLD 1975 Kar 819 and Crescent Sugar Mills & Distillery Limited vs M/s American Export Isbrandtaen PLD 1983 Kar 29, where it was held that under Carriage of Goods by Sea Act 1925 the particulars mentioned in the bill of lading in compliance with Article III Rule 3(a), (b) and (c) are prima facie evidence against the carrier which is rebuttable. In Tar Mohammad Janoo it was also observed that as against an endorsee of a bill of lading the carrier should not be allowed to repudiate the statements shown in the bill of lading issued by it. These judgments lay down the correct law under the Carriage of Goods by Sea Act. 20. During arguments reference has been made to the Bills of Lading Act, 1855. The Bills of Lading Act vest in the consignee or endorsee all rights of suit and subjects to the same liabilities in respect of goods shipped under it as he is a party to the contract contained in the bill of lading. Section 3 provides that such bill of lading shall be conclusive evidence of shipment made under it as against the master or other person signing the same whether the goods or any part thereof may not have been shipped. But such right is not available to the holder of the bill of lading who had actually noticed at the time of receiving the same that the goods had not been, infact, loaded on board. The master or other person signing the bill of lading may be exonerated from the liability by showing that misrepresentation was caused without any default on his part and wholly by the fraud of the shipper or the holder or some other person under whom holder claims. The principle of estoppel as enunciated in the Bill of Lading Act, 1855, and similar enactments in USA has been stated by Tetley as follows:- "The United Kingdom Bills of Lading Act, 1855, at Section 3, like the Canadian Bills of Lading Act, at Section 2, provides a rule of estoppel in respect of the quantity of the goods shipped on board. The estoppel is against the master or other person signing the bill of lading and is in favour of the consignee or endorsee for valuable consideration. The Pomerene Bills of Lading Act, 1916, at Section 22 provides a similar estoppel, but (i) it is against the carrier (ii) is not merely for quantity, but for the description in the bill of lading (i.e., marks, quantity and condition) and (iii) the date of shipment and (iv) is in favour of the owner of (he goods under a straight hill (way bill) or the holder of,an order bill for value in good faith. The Pomerene Act in this and many other provisions is a very superior statute". Referring to Section 3 of the Bills of Lading Act, Carver in paragraph 107 states as follows:— "This section prevents the person who has actually signed a bill of lading, or the person in whose name and with whose authority it has been signed, from disputing the accuracy of its statement of the kind and quantity of the goods shipped, in any proceeding between a consignee or indorsee for value and himself, unless he can bring himself within the proviso. It does not bind the shipowner when the bill of lading has been signed by his agents in their own names;" While referring to Article 3, Paragraph 3 of the Hague Rules he writes in paragraph 518 that: "This rule is modified, in the case of bulk cargoes, by Section 5 of the Act. This rule only states that the bill of lading shall be prima fade evidence. The bill of lading, may, nevertheless, be conclusive as to the order and condition of goods shipped. Decisions on bills of lading to which the Act does not apply to the effect that the statement in them as to apparent good order and condition estops the shipowner (as against a person taking the bill of lading for value) from proving that the goods were not in such order and condition when shipped are not rendered inapplicable by this rule. Nor can this rule affect the master's liability under Section 3 of the Bills of Lading Act, 1885." In USA the Pomerene Bills of Lading Act, 1916, is applicable but according to Section 3, sub-section (4) of COGSA, the COGSA is not construed as repealing the application of any part of Sections 81 to 124 of Title 49 namely Section 1 to 44 constituting Pomerene Act 1916, Section 22 of which is similar to Section 3 of the Bills of Lading Act. According to the rule of construction COGSA and Pomerene Act should be read harmoniously with each other and, therefore, the bill of lading issued in the prescribed manner, notwithstanding qualifying clauses discussed above, will be a prima facie evidence. The declaration that such, a bill of lading is a prima fade evidence confers on the carrier's right of rebuttal. Likewise, under the Bills of Lading Act by virtue of the proviso to the section the o\vner is entitled to exonerate himself from liability in the given circumstances. 21. The learned Single Judge has relied on two judgments of the Singapore Court to come to the conclusion that the container as described in the bill of lading should be treated as one package. The first case is Tlie American Astronotes, (1979) 2 MLJ 220 which has been referred in the earlier part of the judgment. The container was packed with 580 cartons of toilet soap and sealed by and on the other hand makes notations to show its complete ignorance and doubt about its correctness and accuracy. The law has given choice to the carrier to enter the particulars declared by the shipper or not to enter them and further protects the carrier by making shipper liable for compensation for misrepresentation. Taking into consideration the commercial nature of the bill of lading which is a negotiable document it is necessary that where COGSA or Hague Rules as enacted, apply, they must be followed. Therefore, if the number of packages and nature of the goods are mentioned in the bill of lading then the words 'said to contain' or 'particulars furnished by the shipper', CY/CY and similar notations will not permit the carrier to dispute the prima facie character of the bill of lading issued in the prescribed manner. In such a case if the particulars and number of packages contained in the container are mentioned in the bill of lading the carrier is prima facie liable to discharge a container containing the goods mentioned in the bill of lading subject to rebuttal. And each package in the container shall be treated as a package. Where a carrier has entered in a bill of lading the number of container only without giving particulars of the goods stowed in it the carrier will be liable to discharge one container irrespective of the goods stuffed in it. The container shall be treated as one package. In cases where the goods have been stuffed by the shipper and the carrier is not associated with the stuffing and is not aware of the contents but accepts the declaration of the shipper as to particulars and number of goods to be correct and mentions it in the bill of lading, the liability of the carrier would be not to deliver one container only but the goods contained in it as described in the bill of lading. This interpretation is in consonance with the letter and spirit of COGSA and Hague Rules. On this issue courts have faced difficulty in interpreting Hague Rules, however,, in view of Us amendment by Hague/Visby Rules it seems clear that it has now been clarified and declared in positive terms. Therefore, this interpretation finds support from the opinion and resolution of the international commercial and shipping communities as well. 23. A bill of lading with notations like CY/CY, CFS or SLC is a prima facie evidence as provided by law but its rebuttal by the carrier becomes easier and the burden becomes much lighter than in other cases. Such or similar notations on the bill of lading have gained currency and their meaning is well understood in shipping, commercial and banking circles to mean that the carrier was not associated with the stuffing of the container which was exclusively done by the shipper. In the face of such bill of lading the carrier need not prove these facts unless rebutted. It has only to establish that such sealed container was properly and carefully loaded, handled, stowed, carried, kept, cared for and discharged. The burden will then shift to the shipper to prove that the number of packages or goods as shown in the bill of lading were stuffed in it. Without such proof the claim for loss or damage cannot succeed. Where the bill of lading is in respect of a container without describing the goods contained in it, the words 'apparent order and condition' will refer to the apparent condition of the container. 24. In the present case admittedly the bill of lading was marked with notation CY/CY, STC, which prima facie established that the containers were stuffed exclusively by the shipper. The respondents have proved by cogent evidence that the containers were discharged at Karachi with seals intact. They have further, by evidence in rebuttal, proved that they have discharged their duties as carriers properly. The appellant has not produced any evidence in rebuttal to prove the number and condition of bales stuffed in the containers. Therefore, for somewhat j different reasons the appeal is dismissed. Considering the nature of controversy | involved, the parties shall bear their own costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 65 PLJ 1993 SC 65 Present: AJMAL MIAN AND SAIDUZ7AMAN SlDDIQUI, JJ YAQUB MASIH JACOB-Petitioner versus MRS. LOUISA DE SOUZA-Respondent Civil Petition No. 223-K of 1992, dismissed on 9.6.1992 [From judgment of High Court of Sindh, dated 18.2.1992, passed in FRA No. 799 of 1989 (reported as PLJ 1992 Karachi 148)] Concurrent Findings— —Tenant-Ejectment of-Orders of-Challenge to—There are two concurrent • findings of facts on plea of personal bonafide requirement and impairment of value and utility of shop—Such concurrent findings could only be interfered wilh by Supreme Court if there is any misreading of evidence by courts below or courts have ignored any material piece of evidence-Held: Reasoning of learned judge in chamber does not suffer from any infirmity and no exception can be taken to concurrent findings of learned judge in chamber-Petition dismissed. [Pp.66&67]A&B Mr. S.M. Gharib Nawa? Daccawala, Advocate/AOR for petitioner Memo for respondent Date of hearing: 9.6.1992. order Saiduzzaman Siddiqui, J.-The petitioner, who is a tenant in respect of shop No. 70 Al Amna Pla/a, Opposite Capri Cinema, 130 Depot Lines, MA. Jinnah Road, Karachi has sought leave to appeal against the order of learned Judge in Chamber of the Sindh High Court dated 18,2.1092, By the impugned order the learned Judge in Chamber maintained the order of eviction passed against the petitioner by Additional Rent Controller on the ground of personal and bonaflde requirement and impairment of the value and utility of the building. The eviction application was filed before the Additional Rent Controller Cantonment, under Section 24 of the Cantonment Rent Restriction Act, 1963 (hereinafter to be called as Act only) on the ground of default in payment of rent for the month of August, 1988, Telephone Bill amounting to Rs. 7,592/-, bonaflde personal requirement of the respondent landlady of the shop for her own use and alteration and addition in the premises which had impaired the value and utility of the shop. The Rent Controller granted the application on all the above-mentioned 3 grounds but in appeal the learned Judge in Chamber reversed the findings on the ground of default in payment of rent but maintained the eviction order on the ground of personal and bonaflde requirement of the shop by the respondent, landlady as well as the impairment of the value and utility of the premises on ground of un-authoriscd alteration and addition made in the shop. The learned counsel for the petitioner contended before us that there was no satisfactory evidence on record to establish personal and bonaflde requirement of the respondent as (he respondent is a working lady and her husband is a sea-man who remains away from the house for several months together on account of his occupation. Learned Counsel also contended that the respondent was already in possession of another shop No. 76 in the building which was lying vacant and, therefore, she could not claim the possession of anolhcr shop which was occupied by the petitioner unless she was able to establish (hat the shop which was lying vacant was not suitable for her requirement." There are 2 concurrent findings of facts, both on the plea of personal and bonaflde requirement of the shop by the respondent as well as impairment of the value and utility of the shop premises on account of unauthorized construction. Such concurrent findings of She facts could only be interfered with by this court if ihcre is any mis-reading of evidence by the courts below or the courts have arrived at the findings ignoring any material piece of evidence on record. We have gone !through the evidence of respondent's husband in the case and we find that the suggestions given to this witness by the petitioner's counsel in cross examination A that he was carrying on business of pet-birds in shop No. 70 and 76 was denied by him. He also denied the suggestion that shop No. 76 in the building belongs to respondent. The learned counsel very vehemently urged before us that the respondent's husband was confronted with Ex-Aw-8 which was a receipt in respect of shop No. 76 and the witness admitted the signature of his wife. However, this admission is not sufficient to hold that shop No. 76 was lying vacant and that the respondent was she owner of the shop. The learned Judge in Chamber while dealing with the question of persona! and bonaflde requirement of the respondent observed as follows:-- "So far as the finding as to requirement of the premises for personal use of the landlady is concerned, the respondent's attorney, who is also her husband, has stated on oath that the shop in question is required by the respondent for carrying on the business of 'Snack Bars'. The appellant's counsel has cross-examined the respondent's husband on this point, but could not shake his testimony. By now the settled law is that it is enough to state on oath that the landlady requires the rented premises for her bonafide personal use and to withstand test of cross-examination successfully. No further evidence is required to be given by her. This proposition is so well settled that it requires no authority to be cited in its support. The appellant's counsel has placed reliance in the cases of (1) Mrs. Nadira Farooqi Vs District and Sessions Judge (1987 MLD 616), (2) Mrs. Rafiqa Begun Vs Mrs. Mahmooda Wahidina (P.L.D. 1987 Kar. 287) and (3) Raja Shahbaz Khan Vs Muhammad Fazal Kiani (1988 C.L.C, 811) which do not apply to this case. The appellant's counsel has contended that the respondent was in occupation of shop No. 76 which was adjacent to this shop and was lying vacant and has confronted her Attorney with the receipt of rent which the respondent had received for this shop. The Altorncy of the respondent has admitted that the receipt is signed by his wife, but has denied that the shop belongs to his wife. Respondent's counsel Mr. Syed Ziauddin Nasir stated from the Bar that in fact the shop belongs to the mother of the respondent, who is alive and not to the respondent. The burden to prove that the shop belongs to the respondent and is in her occupation, was on the appellant which she has failed to discharge." The above reasoning of the learned Judge in Chamber does not suffer from any infirmity. Similarly, while dealing with the question of impairment of the value and utility of the building, the learned Judge reached the conclusion that the additions and alterations made in the premises were unauthorized, as they were made without the permission of the respondent landlady. The learned Judge also came to the conclusion that the additions and alterations made in the shop are likely to impair the utility of shop. The above finding given by the learned Judge in Chamber is based on the admission of the petitioner that "he had made additions and alterations without consent and permission of the respondent. No exception can be taken to the above findings of the learned Judge in Chamber. There is no merit in this petition which is, accordingly, dismissed and leave is refused. However, petitioner is allowed 6 months time to vacate the premises on the condition that the rent for this period of 6 months will be deposited in advance •within 2 months, from today, and that in case the petitioner failed to vacate the premises after expiry of period of 6 months, the Rent Controller will issue writ of ejectment against the petitioner without any further notice and the same will be executed, if necessary with Police aid. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 SC 68 PLJ 1993 SC 68 [Appellate Jurisdiction] Present: dr. nasim hasan siiah, shafiur rahman, saad saood jan, abdul oadef.r ciiaudhry and sajjad ai.i siiah, JJ MUSHTAQ HUSSATN-Applicant/Pethioner versus THE STATE-Respondent Criminal Misc. Petition No. 87 of 1992, in Criminal PSLA No. 385 of 1987, dismissed on 26.8.1992 Criminal Procedure Code, 1898 (V of 1898)- —S. 382-B--Murder-Offence of-Death sentence confirmed by High Court and leave to appeal refused-Conversion of death sentence to life imprisonment afterwards-Whether benefit of section 382-B can be given to applicant-Question of-Section 382-B comes into effect only when court passes a sentence of imprisonment on an accused—In case of applicant, court has not passed a sentence of imprisonment—Held: Such petition is not competent-Petition dismissed. [P.69JA&B PLJ 1992 SC 1 rel Nemo for Applicant/Petitioner. Mr. Maqbool Elahi Malik, Advocate General, Punjab for Respondent. Date of hearing: 26.8.1992. order Shailur Rahman, J.—The petitioner/applicant convicted under Section 302 PPC and sentenced to death, which sentence stands converted to life imprisonment, has moved from the Jail a Petition seeking benefit of Section 382-B of the Criminal Procedure Code. 2. The petitioner/applicant claims to have remained in prison as an under trial from llth of January, 1982 to 7th of January, 1984. He was convicted and his sentence of death confirmed by the High Court on 3rd of November, 1987. He sought leave to appeal against the judgment of the High Court by the Criminal Petition No. 385 of 1987 and leave to appeal was refused to him on the 9th of April, 1989. The sentence of dealh thereby remained intact. 3.' It appears from the Petition that subsequently the sentence of death awarded by the courts was commuted to life imprisonment which fact has rompted the petitioner/applicant to seek the concession available in certain cases under Section 382-B of the Criminal Procedure Code. 4. After hearing the learned Advocate-General in the matter we find that I this or such a Petition is not competent. Section 382-B of the Criminal Procedure Code provides as hereunder:-- "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." 5. It comes into effect only when the Court passes a sentence of imprisonment on an accused. In the case of the petitioner/applicant the court has not passed a sentence of imprisonment. Besides, this matter stands decided by this Court in Bashir and 3 others versus Vic State (PLJ 1992 Supreme Court 1). 6. The Criminal Miscellaneous Petition is, therefore, dismissed. The petitioner/applicant be informed. (MBC) (Approved for reporting) Petition dismissed.

PIJ 1993 SC 69 [Appellate Jurisdiction] PIJ 1993 SC 69 [Appellate Jurisdiction] Present: saleem akhtar and muhammad taqi usmani, JJ GULISTAN-Petitioner versus THE STATE-Respondent Criminal Petition No. 51 (S) of 1992, dismissed on 26.8.1992 [From judgment dated 10.5.1992, passed by Federal Shariat Court] Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979)-- —Art. 15(l)&(2)-Truck involved in offence-Confiscation of~Challenge to Contention that proviso in Article 15 applies to both sub-clauses and its applicability cannot be restricted to sub-clause (2) alone--A perusal of Article 15 will show that sub-clause (1) applies to court and sub-clause (2) does not apply to court-Under sub-clause (1), court can pass order of confiscation whereas under sub-clause (2), Collector or Prohibition Officer or any officer authorised by Provincial Government may pass order of confiscation-Held: Words "no such order" in proviso refer to order contemplated to be passed under sub-clause (2) of Article 15 and not to order under sub-clause (1)~ Petition dismissed. [Pp.70&71]A&B Mr. Muhammad Mnnir Peracha, Advocate Supreme Court and Ch. Akhtar All, AOR for Petitioner. State: Not represented. Date of hearing: 26.8.1992. order Saleem Akhtar, J.-This is a petition for leave to appeal against the judgment of the Federal Shariat Court The petitioner submitted revision application praying for release of the truck involved in the offence committed by the accused persons who were convicted and the truck was confiscated. The petitioner claims to be the owner of the truck and was not prosecuted with the driver and cleaner who were charged under Article 3/4 Prohibition (Enforcement of Hadd) Order, 1979. Mr. Muhammad Munir Peracha, the learned ASC contended that the petitioner had sold the truck to Karim Dad who sold it to Malik Fayyaz and all transactions were on hire-purchase basis and further that he is a registered owner and entitled to recover instalments. The truck has changed hand twice and was involved in transporting narcotics of huge quantity for which the driver and the cleaner have been convicted. The Court therefore confiscated it under Article 15 which was just and proper. The learned counsel contended (hat the proviso in Article 15 applies to Article 15(1) and 15(2) and its applicability cannot be restricted to sub clause (2) alone. On this assumption it was contended that no notice was given to the petitioner who was the owner of the truck and therefore the order of confiscation was illegal. Article 15 reads as follows:- "15. Confiscation how ordered.--(l) In any case involving any thing liable to confiscation under this Order, the Court deciding the case may order such confiscation despite the acquittal of the person charged. (2) When an offence under this Order has been committed but the offender is not known or cannot be found, or when anything liable to confiscation under this Order and not in the possession of any person cannot be satisfactorily accounted for, the case shall be inquired into and determined by the Collector or other Prohibition Officer incharge of the District or any other officer authorised by the Provincial Government in this behalf, who may order such confiscation: Provided that no such order shall be made until the expiration of fifteen days from the date of seizure of the thing intended to be confiscated or without hearing the persons, if any, claiming any right thereto, and evidence, if any, which they produce in support of their claims." A perusal of Article 15 will show that sub clause (1) applies to the Court which has been empowered to pass order of confiscation of any thing involved in the case liable to confiscation irrespective of the acquittal of the person charged with the offence. Sub-clause (2) does not apply to Court. In the circumstances specified therein, the Collector or Prohibition Officer incharge of the District or any officer authorised by the Provincial Government may pass order for confiscation. The proviso imposes pre-conditions for exercise of power under subclause (2). Firstly, in such cases the officer empowered cannot pass order of confiscation before the expiry of 15 days from the date of seizure of the thing liable to be confiscated. Secondly, if any person appears and claims the said thing, then without hearing such person and affording him an opportunity to produce evidence, if any, in support of his claim, no order of confiscation can be passed. The words "no such order" in the proviso refer to the order contemplated to be passed under Article 15(2). It has no reference to the order passed under Article 15(1) by the Court. The petition is dismissed. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 SC 71 [Appellate Jurisdiction] PLJ 1993 SC 71 [Appellate Jurisdiction] Present: sai.eem akhtar and muhammad taqi usmani, JJ MUHAMMAD ANWAR alias NANIMAR-Petitioner versus THE STATE-Respondcnt Criminal Petition No. 22/S of 1992, decided on 26.8.1992 [From judgment dated 10.2.1992, passed by Federal Shariat Court ] Appeal- —Offence under Articles 3/4 of Prohibitition (Enforcement of Hadd) Order, 1979-Conviction for-Challcnge to—Whether jail appeal could be decided during pendency of appeal through Advocate-Question of—Held: Leave is granted to consider whether during pendency of an appeal filed through an Advocate, order dismissing jail appeal will operate as a bar to hear pending appeal, and whether dismissal of jail appeal during pendency of appeal through Advocate, is illegal. [Pp.72&73]A&B PLD 1966 (WP) Lahore 341 rel Mr. Muhammad Munir Khan, Advocate, Supreme Court, for Petitioner. State: Not Represented. Dates of hearing: 25 and 26.8.1992. order Saleem Akhtar, J.--The petitioner was sent up for trial under Article 3/4 Prohibition (Enforcement of Hadd) Order, 1979 on the allegation that on 14.1.1988 at 6.15 P.M. in the area of Gul Sehger Wali he sold heroin bearing five grams and at the time of raid on the same day police recovered heroin from the house of the petitioner weighing 1000 grams. The learned Trial Court convicted the petitioner by judgment dated 3.10.1991. The petitioner first filed Jail Criminal Appeal No. 205 (L) of 1991. Thereafter he also filed an appeal through advocate on 28.10.1991. The jail appeal came up for hearing before the Federal Shariat Court and was dismissed by judgment dated 10.2.1992. Mr. Muhammad Munir Khan, learned ASC contended that as the appeal filed through an advocate was pending, the jail appeal should have been heard alongwith the appeal filed through the advocate. According to the learned counsel, during the pendency of the appeal filed through an advocate, the jail appeal should not have been dismissed and opportunity should have been given to the advocate representing the petitioner to argue the case. The learned counsel has referred to Shada vs. The State, PLD 1966 (W.P.) Lahore 341. In this case, the petitioner had filed criminal appeal through jail which was rejected on 31st of August 1965 by the learned Session Judge in ignorance of the fact that the appeal by the petitioner through counsel was fixed for hearing. When the appeal through counsel was heard, the same was dismissed on the ground that jail appeal was rejected after considering the evidence and therefore the jurisdiction to hear the appeal was ousted. Relying on AIR 1926 All 78, thejearned Judge in Chamber observed as follows: "When the accused had preferred two appeals, one from jail.and the other through counsel, to the same Court, the dismissal of the jail appeal is not a bar when the appeal filed through counsel is pending before the Court, for hearing, the previous order of hearing the jail appeal, when the appeal through counsel is fixed for hearing and the jail appeal having been dismissed, is illegal and without jurisdiction. So also the subsequent dismissal of the appeal filed through counsel, on the ground that the Court had no jurisdiction in view of the previous dismissal of the jail appeal, is illegal." The learned counsel also referred to Partap Singh vs. Ttie State, Vmdhya Pradesh AIR 1961, Supreme Court 586 where it was observed that where the appellant who w,as in jail filed an appeal under Section 420 Cr.P.C. through the Jail Authority which was dismissed by the High Court summarily and the order of dismissal was lawful, a subsequent appeal filed through a pleader was not maintainable. This judgment enunciates the principle that a second appeal filed through the pleader after the dismissal of jail appeal is not maintainable. The questions for consideration are:- (1) Whether during the pendency of an appeal filed through an advocate, the order dismissing jail appeal will operate as a bar to hear the pending appeal filed through advocate; (2) Whether the order of dismissal of jail appeal passed during the pendency of an appeal filed through advocate in the same Court is illegal. Leave is granted. (MBC) (Approved for reporting) Leave granted.

PLJ 1993 SC 73 [Appellate Jurisdiction] PLJ 1993 SC 73 [Appellate Jurisdiction] Present: muhammad afzal Zui-LAH, CJ, muhammad afzal lone and wali muhammad khan, JJ. STATE THROUGH DEPUTY ATTORNEY GENERAL, Peshawar-Appellant versus BANDA GUL and 2 others-Respondents Criminal Appeal No. 207 of 1990 (also CrA.No. 7-P of 1991), accepted 'on 14.4.1992 (approved for reporting on 20.10.1992). [On appeal from judgments dated 13.12.1989 and 30.6.1990, passed by Peshawar High Court, in Crl. Appeal Nos. 87 of 1984 and 89 of 1985 respectively]. Customs Act, 1969 (IV of 1969)- —S.171 read with Section 156(1 )(89)-Contraband goods-Recovery of- Acquittal of respondents-Challenge to-Whether non-compliance with provisions of Section 171 is fatal to prosecution-Question of-There is conflict of opinion between Karachi and Quetta High Courts on this aspect—This issue has already been decided by Supreme Court holding that non-service of notice under Section 171 is not fatal to prosecution-Held: Purpose of notice under Section 171 is to post accused with knowledge of allegations against him—Held further: This requirement is substantially complied with where a recovery memo is prepared in presence of accused or otherwise is brought to his notice- -Appeals accepted and cases remanded for denovo trials. [Pp.76&77]A&B 1980SCMR114//. PLD 1984 Quetta 1 and PLD 1968 Karachi 599 ref. Mr. Nur Ahmad Khan, AOR for Appellant (in both appeals). Respondent: Not represented (in Crl. Appeal No. 207 of 1990). Mr. Shakirullah Jan, AOR for Respondents (in Crl. Appeal No. 7-P of 1991). Date of hearing: 14.4.1992. judgment Muhammad Afzal Looe, J.~In these two Criminal Appeals (No. 207/1990 & 7-P/1991) arising out of two different judgments of the Peshawar High Court, Peshawar, involving same point of law on which there has been difference of opinion between the Karachi High Court and Quetta High Court on interpretation of Section 171 of the Customs Act, 1969, leave to appeal was granted to examine as to whether or not non-compliance with the provisions of the said section is fatal to the prosecution. 2. The facts of the case in Criminal Appeal No. 7-P/1991 are that on 2-9-1982, at 9.00 A.M. in the course of a 'Naka-bandi' laid by Bada Ber police, Truck No.PRA-5871 driven by respondent No. 1 coming from Bara, Tribal Area, was stopped. Respondent No. 2 was then sitting by the side of the driver. The police party searched the truck and found 56 bags of betel-nuts of 100 K.Gs. each and 4 small bags of 35 K.Gs. each, in all weighing 5740 K.Gs. which were hidden underneath the bags of peaches. As both the respondents failed to produce any document showing their lawful possession of the betel-nuts, which were of foreign origin, Waris Khan Inspector/S.H.O. who was head of the police party, prepared recovery memo Ex.PWl/1 and took the goods alongwith the vehicle in his custody. A criminal case was registered against the respondents for the commission of offences punishable under Section 156(1), clause 89,' of the Customs Act. The goods in question were subsequently lodged in the warehouse. The respondents were tried by the Special Judge Customs, Taxation & Anti- Smuggling, N.W.F.P., Peshawar, before whom respondent No.l took up the stand that the consignment in dispute was placed in the truck by some other persons without his knowledge. Similarly the co-accused Ali Akbar asserted that the vehicle was not loaded in his presence and thus, he had no knowledge of the smuggled goods. The learned Special Judge took the view that provisions of Section 171 are mandatory, and as no notice thereunder was served on the accused, the seizure of the goods and all subsequent proceedings were wholly illegal. He also maintained that even the copy of the recovery memo Ex.PWl/1 was not given to the respondents. Consequently, he acquitted the accused vide his judgment, dated 25.8.1985. 3. The State challenged this acquittal through a revision, but the learned Single Judge upheld the view taken up by the learned Special Judge that in­ compliance with the provisions of Section 171 rendered the entire action as illegal. The other reason which weighed with the High Court was that the case property was not produced before the trial Court. In this view of the matter, the High Court declined to interfere with the acquittal order. Its judgment in this behalf is dated 30.6.1990. 4. As regards the other appeal (No. 207/90), on an information received by the Customs Department that contraband goods were being smuggled into the down country by road, via Checkpost Kotal, Mr. Ziauddin, Inspector Customs, who on 10.1.1981, was on duty at the Checkpost at 1.30 A.M., intercepted Truck No.PRC-5082 and its search led to the recovery of the following goods of foreign origin: "(1) Bin leaf 25 bundle each weighing 50 k.g. total 1250 k.gs (gross) bearing labels of India Government and Marks (Agmark Sheekakm Powder) transit to Afghanistan. (2-y Pad locks Diamond Brand (Made in China) numbering 192 dozens. (3) Playing Cards "Bonus", Made in USA numbering 144 dozens. (4) Combes "Ship" brand of Foreign origin numbering 7000 Nos". The truck driver made good his escape in the darkness of the night. However, the other two occupants of the vehicle, who are respondents No. 1 & 2 herein, were arrested as they failed to produce any document justifying the possession of the goods which apparently had been smuggled without any lawful authority. The goods were taken into custody by the Inspector Customs by means of recovery memo Ex.P.1/1. On his report a case under Section 156(l)-(89) of the Customs Act, 1969 was registered against the three accused and they were arraigned before the Special Judge (Central) Anti-Smuggling, Peshawar . Before the trial Court the respondents raised the plea that no notice under Section 171 was served on them. The Court found that the Custom Authorities despite their claim that such notice was served, could not bring any material on the record to establish the service of notice; held that the provisions of Section 171 are mandatory which were violated and, therefore, the recovery of the goods as well as the arrest of the respondents were illegal. Accordingly, the respondents were acquitted of the charges against them. With this acquittal the High Court did not differ and upheld the trial Court's finding that it was obligatory on the Customs Authority to have served a notice in writing under Section 171 on the respondents, informing them of the reasons of their arrest and nature of the property recovered from them. The High Court also noticed that the sei/ed goods were not produced before the trial Court, and that as the truck driver had escaped, in the opinion of the learned Judge, it was obligatory for the prosecution to have established that the two .respondents silting in the truck had the requisite knowledge of the contraband goods under Section 178 of the Customs Act. It was maintained that in the absence of any evidence attributing knowledge to the respondents, they could not be convicted under Section 156(l)-(89) of the Act. Consequently by judgment ?' dated 13.12.1989 the respondents' acquittal was maintained and the criminal appeal brought by the State dismissed. 5. We have heard the learned Counsel for both the sides. As observed earlier, there is a conflict of views in the Karachi High Court and Quetta High Court on the construction and scope of Section 171 ibid. In Azizullah vs. The State (P.L.D. 1981 Karachi 250) a Single Bench of the Karachi High Court relying on an earlier decision of that Court in S.M.Yousuf and others vs. Collector of Customs and others (P.L.D. 1968 Karachi, 599) maintained that provisions of Section 171 are mandatory and thus prosecution of a person and seizure of goods from him on the ground that he smuggled prohibited goods into Pakistan, in the absence of service of notice under Section 171 of the Customs. Act, are wholly illegal. It is to be noticed that in S.M.Yousuf s case Section 172-A of the Sea Customs Act, 1878, provisions whereof are similar to Section 171 had fallen for consideration before the High Court, and its breach was considered as fatal to the prosecution of the accused person. However, the High Court of Balochistan in Hizbnllah vs. The State and another (P.L.D. 1984 Quetta 1) maintained that the trial of an accused is not dependent on issuance of notice under Section 171 and its requirement would stand satisfied, if at the trial the accused has sufficient notice of the charges levelled against him. The conflict of views in the interpretation of this provision should no longer subsist, for this issue has already been decided by this Court in Abdul Rauf Klwn vs. Collector Central Excise & Land Customs, Peshawar and 3 others (1980 S.C.M.R. 114) and it has been held that non-service of notice under Section 171 is not fatal to the prosecution and seizure of contraband goods, if the recovery memo mentioning the ground of seizure is furnished to the accused. It appears that this judgment was not brought to the notice of this Court, while granting leave to appeal. Seemingly the purpose of notice under Section 171 is to post the accused with the knowledge of the allegations against him and service of such notice is not the condition precedent for launching the prosecution. This requirement is substantially complied with where a recovery memo is prepared in the presence of the accused or otherwise is brought to his notice and from its terms the accusation against the person concerned can reasonably be spelt out. What Section 171 ordains is that when anything is seized or any person is arrested on account of violation of the provisions of the Customs Act, as soon as possible he may be informed in writing of the grounds of the seizure or arrest, as the case maybe. Neither there is anything in the section itself nor in other provisions of the Act specifying any consequence of nullification for non-compliance therewith, which is generally a haulmark of the statutory provision mandatory in character. If the information sought to be conveyed to the accused by virtue of notice under Section 171 is passed on to him through other steps taken in the course of the proceedings commenced against him, the requirement of notice would stand fulfilled substantially and the validity of the action shall remain unaffected. 6. It needs to be ascertained whether or not a substantial compliance of Section 171 has been made in the two cases before us. As regards Criminal Appeal No. 7-P/91, we feel that the preparation of the recovery memo Ex.PW.1/1 and tendering thereof in evidence, for the purposes of Section 171 constituted sufficient notice. Similarly, in the other case, there is the recovery memo prepared by Mr. Ziauddin, Inspector Customs, produced in evidence by him as Ex.P.1/1. Further in the proceedings before the Customs Department respondents No. 1 & 2 confessed the recovery of foreign goods on the interception of the .truck by the raiding party. It, therefore, cannot be said that the respondents wwi^not posted with the knowledge of the grounds of seizure. The view taken by the High Court, therefore, cannot be sustained. 7. As stated above, in the opinion of the High Court, as the driver of the truck slipped away, there was no evidence to attribute knowledge of smuggling of the goods to the two co-accused. It appears to us that these observations have been made in oblivion of the provisions of Section 156(90) and 187 of the Customs Act, under which burden of proof lay on the accused. It was, therefore, for the latter to have proved that they were un-aware that prohibited goods were being smuggled. 8. It is not in every case that the non-production of the case property is fatal to the prosecution case. The object of production of the seized goods in the Court was to establish that these were of foreign origin, but this purpose could well be achieved through other evidence mustered by the prosecution. The High Court has not adverted to this aspect of the case. The view taken by it, therefore, cannot be upheld. For the foregoing reasons, both the appeals are accepted, the impugned judgments (are) set aside and the cases are remanded to the trial Court for decision afresh after de novo trial. (MBC) (Approved for reporting) Appeals accepted.

PLJ 1993 SC 77 [Appellate Jurisdiction] PLJ 1993 SC 77 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ and wali muhammad khan, J ZILA COUNCIL, JHELUM-Appellant versus I.C.I. PAKISTAN LIMITED and another-Respondents Civil Appeal No. 158 of 1991, accepted on 2.11.1992 [On appeal from judgment/order dated 27.11.1990, of Lahore High Court, Rawalpindi Bench, in W.P. No. 186 of 1987] Export Tax- —Manufacture of soda ash-Export tax on-Imposition of-High Court declared imposition of tax as without lawful authority-Challenge to-Zila Councils have been empowered to impose tax on export of goods and animals from ziia whereas Urban Local Councils, are authorised to levy tax on import of goods or animals to their jurisdiction for use and consumption there—Moot question is whether goods produced in other local councils and while in transit passing through Zila Council, can be subjected to export tax—It is case of respondent No. 1 that they do not produce soda ash within limits of Zila Council but they transport their products through its limits to other areas of country—Held: Impugned notification was not without lawful authority and High Court has legally erred in declaring it as such—Appeal accepted and writ petition of respondent No. 1 before High Court dismissed. [Pp.81,82,83&84]A,B,C&D PLD 1963 SC 137, 1985 CLC 1843 and PLJ 1990 Karachi 246 (DB) discussed. Mirza Anwar Baig, Advocate, Supreme Court, and C/i. Akhtar All, AOR for Appellant. Mr, Shahid Hamid, Advocate, Supreme Court for Respondent No. 1. Nemo for Respondent No.2 Date of hearing: 7.4.1992. judgment Wall Muhammad Khan, J.—Zila Council Jhelum, appellant, through leave of the Court calls in question the judgment dated 27.11.1990 passed by the Lahore High Court, Rawalpindi Bench, whereby the writ petition No. 186/87 filed by IC1 Paki?^ '.imitcd, respondent No. 1 herein, was accepted and the notification dated 30.6.1985 passed by the appellant with regard to the imposition of Export Tax on soda ash being manufactured by respondcnt-1 was declared as without lawful authority and of no legal effect aiid as a necessary corollary thereto the order of the Commissioner Rawalpindi Division was also set aside as being arbitrary and illegal. The leave granting order is as follows: "The learned Single Judge held that the competence of the Zilla Council to levy export tax did not extend to urban areas and that while imposing , the said tax the petitioner did not follow the relevant rules. It is contended on behalf of the petitioner that the finding of the learned Judge on both the questions was unsustainable. After hearing the learned counsel for the parties, we are of the opinion that the contentions raised on behalf of the petitioner need examination. Leave to appeal is granted." The undisputed facts of the case are that the respondent company manufactures soda ash having its plant within the territoria! limits of Municipal Committee Khewra, District jheium. The appellant vide notification No. ZCJ/T- 84/773 dated 22.3.1984 levied tax on the export of goods and animals from its limits on several items including soda ash which was published in the Punjab Gazette dated 19.4.1984 and the rate of tax on soda ash was fixed at Rs. 10/- per ton. This levy was challenged by the respondent before the Commissioner, but during the pendency of the said appeal, the appellant modified the rate of tax on other items other lhan soda ash vide notification dated 25.5.1985 and the respondent company did not pursue its appeal. Later on the Punjab Government framed Model Tax Schedule wherein the rate of export tax on soda ash was reduced from Rs. 10/- per ton to Rs. 50/- per truck, in consequence whereof, the appellant modified the export tax and brought it at par with the Model Tax Schedule vide notification dated 30.6.1985. The respondent again questioned this notification through an appeal which was dismissed by the Commissioner vide order dated 9.4.1987 giving rise io the filing of the writ petition, the decision whereof is impugned herein. We have heard Mirza Anwar Baig, Advocate, for the appellant; Mr. Shahid Hamid, Advocate, for respondent No. 1 and have perused the record of the case. Challenge to the imposition of the tax on soda ash is made on two fold grounds; one, that the manufacture of the soda ash being made in the territorial limits of Municipal Committee Khewra falling out-side the jurisdiction of the Zila Council Jheium. the appellant could not legally levy tax thereon; and two, that the necessary formalities prerequisite for the imposition of tax were not complied with and on this score too the notification is without lawful authority and of no legal effect. There is no dispute between the parties so for as the location of the plant in question is concerned and the same is admittedly wiihin the limits of Municipal Committee and not within the limits of Zila Council. It is also not the case of the appellant that soda ash is also being manufactured by other persons having their plant within the limits of Zila Council and as such the levy of tax in question can only affect the respondent at the moment and none else. The case of the appellant, however, is that the goods crossing their terminal limits are liable to pay export tax if they find mention in the schedule of items liable to export tax irrespective of the fact whether they are produced or manufactured within the limits of Zila Council or imported into i! from other local councils situated within their boundaries. The learned counsel for the respondent, on the other hand, strenuously argued that the Zila Council can levy tax only on items produced or manufactured within their limits and that they have no jurisdiction to levy export tax on goods produced/manufactured elsewhere which are only in transit for export to other places in the country. To resolve the controversy between the parties it would be profitable to reproduce hereunder the relevant provisions of the Punjab Local Government Ordinance, 1979 and the rules framed thereunder. 3. Definitions. (1) In the Ordinance, unless the context otherwise requires: (xvi) 'local area" means the area under the jurisdiction of a local council. (xvii) 'local council' means, a local council constituted under the Ordinance. (xx-a) 'matropolis' means an area declared as such under the Ordinance. (xxi) 'municipality' means an area declared to be a municipality under the Ordinance. (xxiii) 'municipal corporation' means a municipal corporation constituted for a city under the Ordinance. (xli) 'rural local council' means a union council, a markaz council or a zila council. (xlvi) 'town committee' means a town committee constituted under the Ordinance. (li) 'union council' means a union council constituted under the Ordinance. (Hi) 'urban area' means a local area of a town, municipality a city or a metropolis. (liii) 'urban local council' means a town committee, a municipal committee, a municipal corporation or a metropolitan corporation. (Ix) 'zila' means a revenue district as notified under the Punjab Land Revenue Act, 1967 (XVII of 1967) but excluding its urban areas and cantonment areas. (Ixi) 'zila council' means a zila council constituted under the Ordinance. CONSTITUTION OF LOCAL COUNCILS 6. Constitution of local councils. (1) As soon as may be, the following local councils shall be constituted:- (a) a union council for each union; , (aa) a markaz council for each markaz; (c) a zila council for each zila; (d) a town committee for each town; (e) a municipal committee for each municipality; (f) a municipal corporation for each city; (g) a metropolitan corporation for each metropolis. (2) Government may by notification declare any area: (a) comprising a village or a number of villages, excluding its urban areas and the cantonment areas, to be a union council; (aa) comprising the area of one or more union councils to be a markaz; (c) comprising the area of a revenue district; excluding its urban areas and the cantonment areas, to be a zila council; 137. Taxes to be levied. A local council subject to the provisions of any other law may, and, if directed by Government, shall levy all or any of the taxes enumerated in the second schedule. 144. Taxation niks. (1) All taxes and other charges levied by a local council shall be imposed assessed, leased, compounded, administered and regulated in such manner as may be provided by rules. (2) Rules framed under this section may among other matters provide for the obligation of the tax-payer and the duties and powers of the officials and other agencies responsible for the assessment and collection of faxes. THE SECOND SCHEDULE TAXES TO BE LEVIED BY LOCAL COUNCILS PART-TI ' TAXES OF ZILA COUNCILS 7. Tax for the export of goods and animals from theziYa. THE PUNJAB LOCAL COUNCILS (TAXATION) RULES, 1980, 2.(d) 'inhabitant' means any person ordinarily residing or carrying on business or owning or occupying immovable property in the local area. The Government of Punjab vide notification No. SOV-5-26/89 dated 24.4.1990 promulgated the Punjab Zila Council (Export Tax) Rules, 1990 and according to its definition 'export' means export from the Zila Council limits. Under Section 5(1) it is provided that the Zila Council shall levy and collect export tax on export of goods produced within its limits or which, during their transit through the limits of the Zila Council, beyond the time allowed for the purpose, under these rules. From the perusal of the aforequoted statutory provisions of law it is amply clear that every local council have defined territorial limits within which they have to perform the function/obligation assigned to them by the law and to levy/increase/decrease taxes for the accumulation of funds to meet the requirements of the local council. The taxes and fees leviable by each local council are enumerated in the Second Schedule appended to the Punjab Locai Government Ordinance. 1979 and there is no overlapping. The Zila Councils have been empowered to impose tax on the export of goods and animals from the Zila whereas Urban Local Councils are authorised to levy tax on the import of goods and animals in the urban local council for consumption, use or sale therein. The definitions reproduced above leave no room for doubt that the zila includes the entire revenue district notified under the Punjab Land Revenue Act except the urban and cantonment areas. Obviously zila council has jurisdiction over the area comprised in 'xila' as defined in (he Ordinance ibid and not beyond its limits viz., the other local councils or municipal and cantonment areas for which separate j local bodies i.e. Metropolis Corporations, Municipal Committees, Town I Committees Municipal Corporations and Cantonment Boards are constituted. The moot question requiring determination is whether the goods produced in the other local councils and while in transit passing through the zila council abutting it can be subjected to export tax while passing through its terminal. This question came up for consideration before this Court as far back as 1963 in case Pakistan Textile Mill-Owners' Association, Karachi v. Administrator of Karachi (P.L.D 1963 Supreme Court 137) wherein it was observed:- "The contention of the learned counsel for the appellants is that in respect of the goods whose ultimate destination is outside the Municipal limits of the Municipality the terminal tax cannot be levied merely on the ground that they pass through the Municipal limits in transit to their ultimate destinalion. He has sought to support this contention of his by a decision of the Supreme Court of India in the case of The Central India's Spinning, Weaving and Manufacturing Company Limited, The Empress Mills, Nagpur v. The Municipal Committee, Wardha (A.I.R. 1958 S.C. 341), where it was held that the terminal tax 'is not leviable on goods which are in transit and are only carried across the limits of the Municipality', because the word 'terminal' must be 'construed as having reference to terminus and has to be read to connote the idea of the end of something connected with a motion and not that of an intermediary stage of a journey." In that case the appellant-Company transported cotton bales from Yeotmal where it had its Mills to Nagpur by road and vehicles carrying them had to pass through the limits of the Wardha Municipality but did no more than use the road which traversed the said Municipal limits. That was a case purely of goods passing through the Municipal limits. There was no loading or unloading done at any point within those limits. The word 'terminal' must also have reference to a terminus a quo or ad quern. Thus goods merely in transit are not liable for such a terminal tax, as their journey has really no terminal point within the Municipal limits." This very proposition of law came up for consideration before a Division Bench of the High Court of Sindh, Karachi in case WazirAli Industries Ltd vs. Tfte Secretary to Government of Sindh (1985 C.L.C. 1843) albeit under the Sindh Local Government Ordinance, 1979, the provisions whereof, more or less, are identical to those of the Punjab Ordinance and it was held that "for the purpose of imposition of toll on the export of goods i.e. Rawangi Mahsool the limits of peoples municipalities and town committees are excluded and, therefore, the levy is ultra vires of the power of the respondents district council." This judgment was followed in a latter case by the Division Bench of the same High Court in case Aijaz Ahmad vs. District Council, Sukkar (PU 1990 Karachi 246 (DB)). The Government of Punjab vide notification dated 24.4.1990, referred to above, issued a clarification that 'export' means export from the zila council limits and to further illustrate it, it was specifically provided in para 5 that Zila Council shall levy and collect export tax on export of goods produced within its limits or those which during their transit through the limits of Ziia Council beyond the time allowed for the purpose under the rules. The notification impugned in the writ petition before the High Court was not the original notification levying export tax on soda ash but was an amendment thereof in the rate of export tax whereby the rate of tax was, as a matter of fact, reduced. It is borne out from the record that against the original notification respondent No. 1 had made representation but later on withdrew therefrom and thereby acquiesced in the right of the appellant to impose export tax on soda ash. Thus, respondent No. 1 could not have grievance against the impugned notification whereby only the rate was amended. It is the case of respondent No. 1 itself that they do not manufacture/produce soda ash within the limits of Zila Council and that they transport their products through the limits of the appellant to the other areas in the country. As per the notification dated 24.4.1990, referred to above, even goods in transit have been declared liable to payment of export tax if they remained in the limits of Zila Council beyond certain time limit which might have been fixed by now. As such, the burden of proof regarding each item of export of soda ash while in transit is on the exporter to satisfy the authorities of the Zila Council at the terminal that the goods are in transit and are being exported within the prescribed time limit. The impugned notification was not without lawful authority and the learned High Court has legally erred in declaring it as such.As regards the objection that the necessary procedural formalities have not been observed in the amending notification in question, suffice it to say, that through the same the rate of export tax was reduced and even if there were some " omissions they could hot Affect the validity of the notification itself. Moreover, respondent No. 1 having no business of soda ash within the limits of Zila Council had no cause of action to call in question the impugned notification on technicalities. Resultantiy, we accept this appeal, set aside the impugned judgment of the High Court and dismiss writ petition No. 186 of 1987 filed by respondent No. 1. There is no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 84 [Appellate Jurisdiction] PLJ 1993 SC 84 [Appellate Jurisdiction] Present: MUHAMMAD AF7AL LONE, MUHAMMAD RAFIQ TARAR AND WALI muhammad khan, JJ MUHAMMAD HABIB-Appellant versus THE STATE-Respondent Criminal Appeal No. 128 of 1990, partly accepted on 3.5.1992 (approved for reporting on 16.8.1992) [On appeal from judgment, dated 22.1.1989, of Lahore High Court, Rawalpindi Bench, passed in Crl. Appeal No. 72 of 1986/MR No. 161 of 1986] Mitigating Circumstance— —Murder-Offence of-Conviction for-Challenge to~It is in impugned judgment that appellant and his wife were living happily and only a few days prior to occurrence, be turned her out from his house-It is prosecution's case that appellant went to house of deceased to bring back his wife but on refusal, he flared up and stabbed deceased—He was then a young lad of less than 22 years and on denial of company of his wife, he must have been provoked—He inflicted a single blow and did not repeat same-Held: While confirming death sentence, learned Judges of High Court have not properly attended to all relevant features of case which mitigate enormity of appellant's crime—Held further: This is not type of case in which extreme sentence is called for—Death sentence converted into life imprisonment. [P.86JA Raja Abdul Ghafoor, Advocate, Supreme Court for Appellant. Ch, Muhammad Akram, Advocate, Supreme Court for State. Date of hearing: 3.5.1992. judgment Muhammad Afzal Lone, JXThis criminal appeal, by leave to appeal, filed by a convict in a murder case, is directed against the judgment dated 22.1.1989, rendered by a D.B. of the Rawalpindi Bench of the Lahore High Court, confirming the death sentence awarded to him by the learned Additional Sessions Judge,. Rawalpindi. 2. The facts concerning the occurrence as noted in the impugned judgment are:"The occurrence took place at the house of Muhammad Shabbir deceased on 3.9.1985 at 8 p.m. in village Daullala, within the jurisdiction of Police Station Jatli, District Rawalpindi. Muhammad Ramzan (PW.6), the brother of the deceased, Mst. Salma (PW.7), daughter of the deceased and the wife of the appellant and her sister Mst. Haseena and mother Mst. Jameela (given up P.Ws) were also present at the house. The appellant reached there at the fateful time and wanted that his wife should accompany him to his house, who had been turned out of the house 5/6 days back after a healing. The deceased told the appellant that he should bring his falhcr, but the appellant insisted and the deceased extended a flat refusal. There was verbal altercation between them and the appellant raising a lalkara thai he would give taste for not sending Mst. Salma, took out a chhitri from the left dub of his shalwar and gave a blow on the left side of the chest of the deceased and ran away. The complainant family soon started with Shabbir for the hospital at Daultala, but he expired'on the way." 3. The learned trial Court relied upon the ocular version furnished by the deposition of Muhammad Ramzan (PW.6) and Mst. Salma (PW.7), the motive, medical evidence, recovery of blood stained chhuri and the reports of the Chemical Examiner and Serologist, and held that the prosecution succeeded in proving the case against the appellant beyond any reasonable doubt. He was thus, convicted under Section 302 PPC, sentenced to death and fine of Rs. 10,000/- in default of payment whereof he had to suffer S.I. for six months. The trial Court further directed that half of the fine, if recovered, would be paid to the heirs of the deceased as compensation under Section 544-A Cr.P.C. The defence put forth by the appellant that he had ousted his wife and the deceased trespassed in his house armed with a chhuri, assaulted hi;n and in the process of grappling, his own chhuri penetrated into his body, was discarded by the learned trial Court. 4. Before the High Court, in the course of hearing of the murder reference and the appeal lodged by the appellant challenging his conviction and sentences, an attempt was made to get his conviction under Section 302 altered into one under Section 304 If PPC, but this plea was turned down with the observation thai:"Of course, the appellant had given the blow to the deceased in a sudden quarrel in the heat of moment, but there was no fight, i.e., actual physical grappling, and his act cannot be called without premeditation as he had brought the chhuri concealed in his dub and he also took undue advantage of the situation and acted in a cruel manner because the deceased was his father-in-law deserved respect and honour from him, and being unarmed, the situation did not call for a forceful thrust of chhuri in the chest." 5, Leave to appeal was granted "to examine whether it was not more appropriately a case where for conviction under Section 302 PPC, sentence of death should have not been imposed". 6. With a view to see as to whether or not there are extenuating circumstances in this case warranting lesser of the two sentences provided by law, we have gone through the record before us. It is in the impugned judgment that the appellant and his wife Mst. Salma were living happily and only a few days before the occurrence he turned her out of the house. She was then on her family way and gave birth to a child later on. It is the prosecution's own case that the appellant went to the house of the deceased and asked him to send his wife alongwith him, but the deceased refused and demanded that he should bring his father for negotiation. It was thereafter that the appellant flared up and stabbed the deceased. According to the F.I.R. the attack was preceded by a verbal altercation between the latter and the appellant. The High Court itself has recorded a finding that he gave blow to the deceased in a heat of moment and .has attributed it to a 'sudden quarrel'. The situation perhaps could have been averted, had not the deceased betrayed an attitude of marked refusal to send the wife of the appellant with him. It is discernible from the record that the appellant was then a young lad of less than 22 years and on the denial of the company of his wife must have been provoked. He inflicted a single blow on the deceased and did not repeat the same. It appears to us that in imposing the death sentence on him the learned Judges of the High Court have not properly attended to all the relevant features of the case, which mitigate enormity of the appellant's crime. In our opinion, this is not the type of case in which extreme sentence is called for. We, therefore, while maintaining the, appellant's conviction under Section 302 PPC., convert the sentence of death awarded to him, into life imprisonment. To meet the ends of justice, the fine of Rs. 10,00fl/- imposed on him is raised to Rs. 15,000/- which, when realized, shall be wholly paid to the heirs of the deceased; in default of payment of fine, the. appellant shall further suffer R.I. for two years. The appeal is partly accepted in the terms stated above. The request for grant of benefit of Section 382-B Cr.P.C. is declined. (MBC) (Approved for reporting) Appeal partly accepted.

PLJ 1993 SC 87 PLJ 1993 SC 87 [Appellate Jurisdiction] Present: dr. nasim hasan shah, muhammad afzal lone and muhammad rafiq tarar, JJ DEPUTY COLLECTOR, CENTRAL EXCISE AND LAND CUSTOMS, Peshawar and 2 others-Appellants versus PREMIER TOBACCO INDUSTRIES LTD.-Respondent Civil Appeal No. 215-P of 1990, dismissed on (date not given) (approved for reporting on 21.10.1992) [On appeal from judgment dated 11.7.1989, of Peshawar High Court, passed in W.P. No. 413 of 1985] Central Excises and Salt Act, 1944 (I of 1944)-- —S. 4(2)-Manufacture of cigarettes-Excise duty on-Levy of-Whether "K-2 Plain" and "K-2 Economy" are of same brand/variety for chargeability— Question of--According to Section 4(2) retail price on which duty is chargeable, is fixed by manufacturer as price at which a particular brand or variety of goods is sold to consumers—When for same brand or variety, manufacturer has fixed different prices, duty is leviable on highest of such prices-There is no doubt that "K-2 Plain" and "K-2 Economy carry different retail prices and price of former being comparatively higher, has been applied by Department for chargeability of duty for both of them-Word "variety" implies a separate set of goods and there may be more than one variety of same brand—"K-2 Plain" and "K-2 Economy" are two different varieties of brand "K-2"--Held: It is difficult to agree with reasoning that "K-2 Plain" and "K-2 Economy" are same brand/variety for purposes of chargeability-Held further: Basis on which departmental authorities came to conclusion that respondent was guilty of evasion of duty, cannot be sustained-Appeal dismissed. [Pp.90&91]A Mr. Nur Ahmad Khan, AOR for Appellants. Mian Shakirullah Jan, AOR (absent) for Respondents. Date of hearing: 4.10.1992. judgment Muhammad Afzal Lone, J.-Leave to appeal was granted to examine:-- "that despite the cigarette contained in the pouch marked as "Economy" remained the same as K-2 20's wrapped in cellophane, while the "Economy" pouch was not so wrapped and thus the difference in the cost of packing would not change the 'brand' or 'variety and as such it could be assessed on a higher rate prescribed under the rules." 2. The facts are that Premier Tobacco Industries Limited, respondent herein, is the manufacturer of different varieties of K-2 brand cigarettes. In February 1979, with the permission of the Central Excise and Land Customs Department the respondent introduced a new variety "K-2 Economy Plain 20's" and fixed its price at the rate of Rs. 1.85 per packet of 20's, as against the other brand known as "K-2 plain 20's" wrapped in cellophane; the price whereof was slightly higher i.e. Rs. 2/- per packet containing 20 cigarettes. The economy brand was not so wrapped and reduction in its price was attributed by the respondent to the comparatively lower cost of the packing material/container. It appears that Economy brand, much against the expectations of the respondent did not catch the market; resultantly w.e.f. 29.3.1979 its further production was discontinued. By then 82,000,00 cigarettes had been cleared. Due to discontinuance of the manufacture of the Economy brand, the left over stock went to the tune of 14.52 million cigarettes. With the permission of the Deputy Collector of the department this stock was repacked in the containers of K-2 plain brand. 3. The Deputy Superintendent, Central Excise and Land Customs, served a show cause notice on the respondent under Section 4(2) of the Central Excise Act, and rules 9 & 52 framed under the Act. The department's case was that the quality of both the brands of the cigarettes remained the same; the sale of the Economy brand at a lower price during the period from February to March 1970, resulted in less payment of excise duty to the extent of Rs. 43.155/-. The Deputy Collector by his order dated 15.4.1980 treated it a case of evasion and directed the respondent to pay Rs. 43,155/- as duty alongwilh penalty of Rs. 4,31,550/-. On appeal the Collector reduced the penalty to Rs. 100,000/-, but upheld the respondent's liability to pay the duty aforesaid. The respondent then invoked the revisional jurisdiction of the Federal Government. The revision petition was accepted to the extent that the payment of the entire penalty was excused but the order of the authorities below, requiring the respondent to pay Rs. 43,155/-, as excise duty, was not disturbed. 4. The respondent sought the removal of the orders of the departmental authorities through judicial review. The writ petition was accepted by a D.B. of the Peshawar High Court, vide judgment dated 11.7.1989, under challenge before us. The reasons which prevailed with the High Court are:- "Section 4(2) of the Central Excises and Salt Act, 1944 provides that 'where any article is chargable with duty at the rate dependent on the retail price of the article, the retail price shall be the price fixed by the manufacturer, inclusive of all charges and taxes at which any particular brand or variety of such articles should be sold or if more than one such price is so fixed for the same brand or variety, the highest such price." "These charges will naturally include the cost of Container or packet in which-such goods are normally offered for sale. It was, therefore, quite conceivable that where a particular "Brand" of goods are offered in different types of packets/containers, the retail prices may vary. It was also noted that the Department had erroneously proceeded on the assumption that since the brand and quality of the cigarettes offered for sale in different types of packing was the same, the Company adopted two different retail prices for the same brand and as such they were liable to pay excise duty on the higher retail price. In the case in hand it also appears that retail price of "Economy" cigarettes fixed by the petitioner was rejected by the Department not for She reason that the packing material was not of inferior quality but on the ground that the quality of cigarettes in both the cases was the same. There is sufficient material on the record to show that the petitioners have been selling she same brand of cigarettes in different types of packing which had the effect of changing the variety of the cigarettes sold to the consumers. The petitioners were, therefore, competent to fix lesser retail price for "Economy" cigarettes on account of the inferior packing material for it constituted a different variety and the Department was not justified in demanding the excess duty from the petitioner on the basis of higher retail price of the same brand of cigarettes." 5. The controversy between the parties is confined to the application of sub­ section (2) of Section 4 of the Central Excises and Salt Act, to the case in hand. This subsection is reproduced below:— "(2). Where under this Act any article is chargeable with duty at a rate dependent on the retail price of the article, the retail price shall be the price fixed by the manufacturer, inclusive of all charges and taxes (other than octroi) at which any particular brand or variety of such article should be sold to the general body of consumers or, if more than one such price - • - is so fixed for the same brand or variety, the highest such price." According to the department, the same quality of cigarettes was packed in the two types of containers, one labelled as "K~2 Economy" and the other as "K-2 Plain"; except that container of thelatter type was wrapped in cellophane, both types of containers contained the same brand or variety and under subsection (2) ibid the duty had to be levied at the -higher of the two prices i.e. Rs. 2/- per 20 cigarettes. On the other hand the respondent's stand is that the price fixed by them is inclusive of "all charges", which included the charges for packing material; since there was difference in the manufacturing cost of the two types of containers resulting in diversity of over all price thereof; they comprised separate variety. 6, It shall be seen that under sub-section (2) the retail price on which duty is chargeable is fixed by the manufacturer and such price is inclusive of all charges and taxes. The charges include the cost of the container. Such retail price, in sub­ section (2), has been identified as the price at which a particular brand or variety of the goods is sold to the general body of the consumers. This provision further ordains, that when for the same brand or variety the manufacturer has fixed different prices, the duty is leviable on the highest of such prices. There is no doubt that in the case before us "K-2'Economy" and "K-2 Plain" carry different retail prices and the price of latter category is comparatively higher which for the purposes of chargeability of duty has been applied by the department to "K-2 Economy" as well. It is important to note that the retail price of "K-2 Economy" was fixed by She respondent under intimation to the departmental authorities and six specimens of its container, as required by Rule 231-A of the Central Excise Rules, were also supplied to them. Keeping in view the quality of the container, the fixation of the retail price of "K-2 Economy" slightly lower than that of "K-2 Plain" cannot be dubbed as arbitrary. Before us it has not been urged that the retail price of "K-2 Economy" fixed by the respondent is not the retail prke within the meaning of Section 4(2). If this fixation conforms to the requirements of law, then under Item No. 02.03 (ll)A(c) of the Schedule to the Act, the duty had to be charged, at the rate given therein, on the retail price printed on the packet. We feel that upon the language of sub-section (2) the condition precedent for validity of the course adopted by the department is that two containers offered for sale tothe general body of consumers consisted of the same brand or variety. In common parlance the term "brand" in relation to merchandise signifies a particular kind of goods and is also associated with a trade mark. On'the other hand, the word 'variety' implies a separate set of goods. There may be more than one variety of the same brand. In the instant case "K-2" is the brand of which "K-2 Economy" and "K-2 Plain" are two different varieties. But. whether or not "K-2 Economy" and "K- 2 Plain" were the same or different varieties, is to be adjudged not on the footing of some scientific analysis of contents of their containers but from commercial angle, and with reference to the view point of the general body of consumers to whom these were offered for sale. It is not disputed that according to the outlook, the labels put and the price printed on the containers, in contemplation of item No. 02.03 (i/')-A of the Schedule to the Act, the goods were intended to be^assed on to the general body of consumers, as two different varieties. There is nothing on the record to show that the consumers did not treat "K-2 Economy" as a different variety. At least such is not the stand of the department before us. We have no doubt that the consumers are largely influenced by the outward appearance of the container and the label put thereon. The container of "K-2 Plain" for which a higher price was fixed by the respondent, as Iready observed, is wrapped in cellophane, and because of the extra expenditure on packing its price was fixed at a higher rate. It is, therefore, difficult to agree with the reasoning advanced on behalf of the appellants to categorise "K-2 Economy" and "K-2 Plain" for the purposes of changeability, as the same brand/variety. The basis on which the departmental authorities came to the conclusion that the respondent was guilty of evasion of duty cannot be sustained. We are satisfied that the conclusion reached by the High Court is correct and docs not call for interference. This appeal is, therefore, dismissed, but the parties are left to bear their own costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ1993SC91 PLJ1993SC91 [Appellate Jurisdiction] Present: dr. nasim hasan shah, ACT, SiiAFiUR rahman, saad saood jan, abdul qadeer chai'dhry and sa.i.iad An shah, JJ ASHIQ HUSSAIN-Appellant versus THE STATE-Respomlcnt Criminal Appeal No. 24 of 1992, accepted on 26.8'.1992. [On appeal from judgment of Lahore High Court, dated 25.3:1991, passed in Criminal Appeal No. 936 of 1988]. (i) Benefit of Doubt- —Murder-Offence of--Conviction for-Challenge to-It is bounden duty of prosecution to prove case against accused beyond doubt and this duty does not change or vary in case in which any defence plea is taken-'-Of course, defence plea is to be considered in juxtaposition with prosecution case and in final analysis, if defence plea is proved or accepted, then prosecution case would stand shattered and discredited—It would be enough if plea is ribstantiated to extent of creating doubt in credibility of prosecution case—Held: Prosecution has failed in its initial duty to prove case against appellant beyond doubt and if defence has failed to substantiate plea of alibi, it does not improve case of prosecution-Benefit of doubt extended to appellant, [Pp.l02&103]L&M PLD 1980 SC 317 r<?/, PLJ 1983 Cr.C. (Lahore) 417 distinguished. (ii) Defence version- —Murder-Offence of-Conviction for-Challenge to-Defence plea is that appellant did not participate in incident as he was admitted in hospital with injuries at relevant time-Defence plea-is supported by Dr. Sajjad Nabi, C.W.I who examined appellant in Civil Ho.s|>iial, Da.ska on day of incident-Another court witness DSP Ghulam Muhammad who investigated case, has supported defence plea saying that he had found appellant as innocent-Held: Defence plea, even if not proved, is sufficient to cast doubt in credibility of prosecution case which has already become doubtful for facts and reasons mentioned in this judgment, [P.102]K (Hi) Eye-witnesses- —Murder—Offence of—Conviction for—Challenge to—Clear cut time is not given and pin-pointed by prosecution for incident-It is specifically mentioned in FIR (hat in street in front of houses, bulbs were alight-Fact that there were bulbs alight producing sufficient light to enable eye-witnesses to see minute details of incident as claimed by them is not confirmed by I.O. who inspected^ spot but did noi prepare inspection memo—Held: Had eye-witnesses been present and seen incident, then specific time of incident could have been given in F.I.R.—Held further; There is no justification for lapse that one out of four eye-witnesses should not run up to Police Station promptly for lodging report. [P.97JB&C (iv) Eye-witnesses-- —-Murder-Offence of-Conv'ction for-Challenge to-Complainant stated in FIR that appellant was armed wilh rifle wilh which he fired at Sadiq and also hit Sadiq with butt of rifle -In evidence, he took somersault and stated that appellant was armed with gun-Substitution of rifle became necessary for complainant to make his evidence consistent with medical evidence-PW 8 is brother of deceased and his evidence is on same lines as that of complainant- Ocular version is not consistent wilh medical evidence-Incident has not taken place in manneras is claimed by eye-witnesses-Held: It is not certain that eye­ witnesses were really present a spot because had it been so, such discrepancies and lapses would not have occurred. [Pp.98,99&100]E,F&G (v) First Information Report— —Murder—Offence of—Conviction for—Challenge to—Whether FIR wa.s promptly lodgcd-Qjuestion of-It Is stated by I.O. in cross-examination that he received information about this occurrence outside police station through some-one—He did not give particulars of that some-one nor noted his name and address-He did not make entry in daily diary-He did not confirm this news from any one and very strangely did not go to spot which was at a distance of 2^ furlongs but went to Civil Hospital at Sialkot--He did not depute Anybody to guard spot-I.O. stated in his evidence that he received information at about 9 P.M. whereas complainant stated that occurrence took place at 8 or 8.30 P.M.—Held: In connection with not lodging FIR promptly, role played by I.O. is also not free from doubt and is shrouded in mystery. [Pp.97&98]D (vi) Principle of parity- —Murder-Offence of--Conviction for-Challenge to-Trial court acquitted three accused persons on ground that satisfactory corroborative evidence was not available against ,them--Acquittcd accused were also named by eye­ witnesses with definite roles assigned to them-Held: Acquittal by trial court and non-interference in revision by High Court is mainly for reason that corroborative evidence in support of statements of eye-witnesses is not available, and same test will apply in case of appellant as well. [P.97JA (vii) Recovery— —Murder-Offence of~Conviction for-Challenge to-Even trial court did not believe, for valid reasons, recovery of weapons and crime empties from spot and positive finding of Ballistic Expert-According to FIR, accused persons had taken appellant with self-inflicted injuries to Civil Hospital, Daska-I.O could arrest him immediately after registration of FIR~He has given no reason for hot arresting him earlier than 25.11.1987 from hospital where he was admitted, and delay of 13 days in affecting recovery of gun during which period he remained in police custody, has not been explained—It cannot be said that gun was recovered from exclusive possession of appellant-Recovery witness did not state that butt of gun was broken-Held: Apart from facts that appellant was not arrested earlier, parcels were dealt with not in proper manner and also that crime empties and guns were sent together, recovery of gun from appellant after 13 days of his arrest, is not free from doubt. [Pp.lOO&101]H&J Ch. Muhammad Anwar Bhindcr, Advocate, Supreme Court, instructed by Rana Maqbool Ahmad Qadri, AOR for Appellant. Mr. M. Aslam Uns, Advocate Supreme Court for State. Date of hearing: 26.8.1992. judgment Sajjad AH Shah, J.--This appeal with leave of the Court calls in question judgment dated 25.3.1991 of Division Bench of Lahore High Court, whereby Cr. Appeal No. 936 of 1988 is dismissed with modification that death sentence awarded to appellant herein is reduced to life imprisonment while maintaining sentence of fine and compensation and in consequence Murder Reference No. 213 of 1988 for confirmation of death sentence is rejected. Cr. Revision Application No. 669/88 filed by the complainant against acquittal of co-accused by the trial Court is dismissed. Initially five persons were put on trial in the Court of Sessions Judge, Siaikol for offences under Sections 302/148 and 149 PPC for committing murder of Muhammad Sadiq son of Muhammad Din in furtherance of their common object while armed with deadly weapons and vide judgment dated 29/>.1°88 in Sessions Case No. 35 of 1^88 Ashiq Hussain was sentenced to death and fine of Rs. 30.000/- or in default R.T. for two "years. He was directed to • pay compensation of Rs. 20,000/- under Section 544-A Cr.P.C. to the heirs of deceased and in default to suffer R.T. for six months. Three co-accused namely Ghulam Hussain and his brother Mohammad Hiissain sons of Mohammad Ismail and Humayun son of Mohammad Sarvvar were acquitted as benefit of doubt was extended to them while one namely; Sarwar son of Jamal Din died during trial proceedings. 2. Briefly stated the relevant facts giving rise to this appeal are that appellant and other co-accused who were put on trial are related inter-se. Ashiq Hussain is brother of Sarwar (now dead) while Ghulam Hussain and Muhammad Hussain are real brothers. Humayun is son of Sarwar. Anwar, brother of Ashiq Hussain, is father-in-law of Ghulam Hussain and Muhammad Hussain. Acquitted co-accused Ghulam Hussain ran money saving device called "committee" in which members contributed some amount every month and amounts so collected from all were paid to each member on turn. Deceased Sadiq was due to get "committee" money amounting to Rs. 37,500/- as it was his turn but Ghulam Hussain avoided and finally refused. 3. On 21.11.1987 in the evening Ramzan son of deceased, riding on motor­ cycle, met Ashiq Hussain and Humayun who were also on motor-cycle on the bridge on Sambrial road in Daska City. Ramzan demanded as to why payment was not being made of "committee" money to his falher Sadiq upon which there was exchange of harsh words. Sadiq also arrived there and intervened saying that he would have the matter settled by Punchayat and brought his son home. 4. On the same day i.e. 21.11.1087, incident took place at about 8 or 8.30 p.m. as deposed by the complainant and at Sham Vela as mentioned in FIR (page 116 of H.C. paper book). It is stated that some lime after altercation between Ramzan son of deceased on one side and Ashiq Hussain and Humayun on the other, incident took place in front of Hareli of deceased and at that time bulbs were alight in front of houses in the street. Five persons came in the street and in front of Havcli raising Lalkara, who were identified as Ghulam Hussain and Sarwar armed with pistols and Ashiq with rifle, Humayun with gun and Muhammad Hussain with carbine. S. Jiq approached them and at the instigation of Ghulam Hussain, Ashiq fired from rifle at Sadiq who was hit on the knee and bent when Ashiq hit him with butt of rifle on his head falling him down. Ghulam Hussain fired from his pistol at Sadiq who was lying down. Other accused persons also fired at Sadiq and thereafter accused persons went away after boarding car which was. parked at the turn of the street. Incident was seen by four witnesses namely; Muhammad Nawaz, Muhammad Riaz, Abdul Latif and Muhammad Shafi. After departure of accused persons they came near and brought injured Sadiq in a car to hospital in Daska and then on the advice of doctor carried him to Allama Iqbal Memorial Hospital at Sialkot but he succumbed to his injuries before reaching hospital. 5. On that day at 9-p.m. Sub Inspector Ahmad Shuja, SHO P.S. City Daska, received information about the incident and shifting of injured to hospital, hence he came to Civil Hospital, Sialkot and recorded statement of complainant Muhammad Nawaz Ex.PE/1 and sent it to the Police Station for registration of formal FIR. He prepared inquest report Ex.PP and injuries statement Ex.PQ. He recorded statements of the witnesses who were present in the hospital. On 22.11.1987 he inspected place of occurrence and recovered blood stained earth, three empties of 12 bore cartridges, two empties of 32 bore cartridges, three missed cartridges of 32 bore, two broken pieces of butt of a gun and a magazine of 7 mm rifle containing five live cartridges. He made necessary parcels. During the course of investigation accused persons in the case were arrested and while in custody Ashiq produced SB 12 bore gun Ex.P-11, Sarwar produced revolver Ex.P- 12 and Humayun produced DB gun Ex.P-10. 6. In the trial Court prosecution examined as many as 18 witnesses in support of its case. Two eye witnesses have been examined namely Muhammad Nawaz complainant and Muhammad Riaz who arc son and brother of deceased respectively. PW-10 is Muhammad Ramzan son of deceased who has testified about prelude to the incident in which altercation took place between him and Ashiq Hussain and Humayun. PW-11 Taj Din deposed about contribution made for "committee". He stated that there were 18 members and each paid Rs. 3000/- per month. Total amount was Rs. 54,000/-. Last draw was to go to Muhammad Sadiq deceased. Ghulam Hussain (acquitted co-accused) gave Rs. 16,500/- to Sadiq and later refused to pay the balance of Rs. 37,500/-. On that account there was friction which ultimately resulted in the occurrence. PW-18 is Sub Inspector, who investigated the case. It is not necessary to mention evidence of remaining large number of witnesses produced by the prosecution at this stage for the icason that it is of formal nature. 7. PW-9 is Dr. Amjad Iqbal who conducted post-mortem examination on the dead body of Muhammad Sadiq and found 11 injuries from which two were fire-arm wounds on left thigh and right ear respectively. There was an incised wound also on the right palm and Ihe remaining injuries were abrasions with one contusion and one lacerated wound. According to the doctor, injury No. 1, which was fire arm wound on the left thigh was fatal and sufficient to cause death and the remaining injuries were simple in nature. 8. Trial Court examined Dr. Sajjad Nabi as Court Witness No. 1, who deposed that on 21.11.1987 at 9.15 p.m. he examined Ashiq Hussain in Civil Hospital, Daska, who was found to be having four injuries on his person. Trial Court also examined DSP Ghulam Muhammad as Court Witness No. 2, who deposed that he also investigated the case and came to the conclusion that Ashiq Hussain did not participate in the occurrence. 9. In the trial Court in his statement under Section 342 Cr.P.C. Ashiq Hussain appellant herein, denied prosecution allegations and stated that on the day of incident after evening prayers near the culvert on Sambrial road, Daska, he met Ramzan and Sultan sons of deceased and requested them not to oppose Ghulam Hussain (acquitted co-accused) in the election, which he was contesting upon which Ramzan gave him a beating with Sota and Sultan fired a pistol shot at him. He was removed to hospital in injured condition and was not present at the time when incident took place in which Sadiq received injuries. It is further stated by Ashiq Hussain that while he was in hospital he learnt that his brother Sarwar was subjected to murderous assault and in self-defence caused injuries to Muhammad Sadiq with carbine. Ashiq Hussain produced photo copy of application sent by his mother to SSP Sialkot for registration of counter-case. Ashiq Hussain declined to give statement on oath. It is not necessary to go into statements of other acquitted co-accused persons. No witness was examined in defence. 10. Trial Court evaluated evidence by placing prosecution case and defence plea of alibi of appellant in juxta-position and concluded that recoveries were not to be believed in view of discrepancies in the evidence of PW-12 Manzoor Ahmad and PW-18 S.T. Ahmad Shuja. For that reason positive findings of Ballistic Expert were held to be of no avail to the prosecution (see page 95 of H.C. paper book). Trial Court ignored discrepancies in the evidence of ocular witnesses and medical evidence on the ground that they did not appear to be so material to adversely affect the prosecution case (page % of H.C. paper book). Trial Court recorded finding of conviction against the appellant on the ground that ocular evidence was corroborated by medical evidence and that of motive with confirmatory circumstance of failure of plea of alibi which was very strongly criticised and 13 reasons were assigned in support of its falsification (see pages 91 and 100 of H.C paper book). Trial Court vide same judgment acquitted three co-accused on the ground that they were entitled to benefit of doubt. 11. While assessing the evidence during appeal proceedings, High Court has believed evidence of two eye witnesses and of recovery of weapons and crime empties with positive report of Ballistic Expert and matching of broken pieces of butt with gun recovered from appellant (see impugned judgment page 26 of S.C. paper book). High.Court has also agreed with trial Court and approved treatment given by it to the defence plea of alibi with 13 reasons assigned in declaring its failure. Dismissing appeal of appellant, High Court has reduced his sentence from death to life imprisonment on the ground that prosecution had failed to prove beyond doubt that fatal injury was caused by the appellant. 12. We have heard learned counsel for appellant and for State. We are of the view that in this case benefit of doubt can be extended to appellant as well for the following reasons: Therefore, these particulars are based upon the declaration of the shipper. The carrier has also to state the apparent order and condition of the goods. This casts a duty upon the carrier to examine and observe the apparent condition of the goods and then state its remarks in the bill of lading. However, it is not mandatory on the carrier to state the marks, number, quantity or weight which he on reasonable grounds suspects that they do not accurately represent the goods actually received for carriage or where reasonable means of checking are not available. Therefore, a carrier is not bound to state the particulars mentioned in sub-section 3(a), (b) and (c) if he suspects their accuracy on reasonable grounds. The law provides the manner in which a bill of lading should be issued and also gives the liberty to the carrier to refuse to enter particulars declared by the shipper which it suspects to be incorrect. The effect of issuing a bill of lading in the prescribed manner is also given in sub-section (4), according to which such bill of lading is to be treated a prima facie evidence of receipt of the goods by the carrier mentioned in the bill of lading in accordance with paragraphs 3(a), (b) and (c) of Section 3. Thus, if the carrier issues bill of lading in the prescribed manner then in case of non-delivery, short delivery or damage to cargo the bill of lading will be a prima fade evidence of the particulars mentioned in it as required and if the carrier wants to be relieved of such prima facie evidence it must produce evidence in rebuttal. Carrier's failure to rebut the prima facie evidence will make such particulars in the bill of lading binding on it. The learned counsel for the respondents has laid great emphasis that as the bill of lading was issued with remarks CY/CFS and STC (Said to contain) the particulars mentioned therein are not binding. Where there is a notation of CY/CFS on a bill of lading it means that the carrier has supplied its containers to the shipper at his yard who has after stuffing and sealing it delivered at the carrier's container freight station for carriage which shall be discharged at carrier's container freight station at the port of destination. So far the notation STC is concerned, this shows that entry in the bill of lading has been made on the declaration of the shipper and further that carrier has not verified or checked it. These notations cannot relieve the carrier from the duties and liabilities cast upon it by virtue of Section 3, sub-section 3(c). Mere statement that marks, numbers, description and particulars of the goods were made on the declaration of the shipper does not discharge the burden placed upon the carrier. If the carrier wants to be exonerated from such liability created by issuing the bill of lading in the prescribed manner it must establish and rebut by producing satisfactory evidence to the effect that the particulars entered in such bill of lading were not correct. If it had reasonable ground to suspect the accuracy of the particulars declared by the shipper it was not bound to enter them in the bill of lading as provided by the proviso to sub-section (3). The fact that the carrier has entered in the bill of lading the declaration made by the shipper shows that prima fade it accepted it to be correct. Therefore, initially the burden is upon the carrier to show that the marks, numbers, weight or contents as mentioned in the bill of lading are not correct. The carriers issue bill of lading with remarks like STC, SLC probably due to commercial convenience and competition between the I carriers and also to attract more customers and to provide facilities to the shippers. Therefore, where the carriers take liberties with the Statute or insert clauses which exonerate them from the statutory duty responsibility or liability the same cannot dislodge the prima facie nature of the bill of lading. Such remarks may however, make the carriers job of rebuttal easier. 16. The learned counsel for the respondent has referred to the judgment of the Privy Council in Canada and Dominian Sugar Company Limited Vs Canadian National Steamship Limited, (1946) 80 LLR 13. In this case the bill of lading was issued before loading was completed stating that the goods had been 'received in apparent good order and condition' qualified by the marginal notation that it had been 'signed under guarantee to produce ship's clean receipt'. The ship's receipt was issued with notation 'many bags stained, torn and resewen'. As the goods were delivered in damaged condition the plaintiffs endorsee made a claim. It was held that in view of notation the carriers were not estopped from adducing evidence that the goods were damaged before shipment. The reason advanced was that the notation conveyed that if the ships' receipt was not clean the statement in the bill of lading as to apparent order and condition could not be taken to be unqualified. While dealing with objection raised on construction of Article III of Rules Scheduled to Carriage of Goods by Sea Ordinance, and relying on Vita Food Product Inc. (1939) AC 277, it was observed that: " ... theic was no evidence that the bill of lading was issued on shipper's demand as required by Rule 3. And further that there is indeed no law which prevents goods being carried at sea without any bill of lading (Vita Food Product sup at P. 294) or makes any particular form of bill of lading obligatory. It seems clear that the bill of lading here was what the parties intended and was in no sense unlawful and void." Again referring to Rule 4 Para 3 of the Rules Scheduled to the Carriage of Goods by Sea Ordinance (same as Article HI Rule 4 of the Hague Rules) which makes bill of lading prima facie evidence it was observed:— "The Rule, however, can have no practical application in this case. The bill of lading, as their Lordships have found, does not describe the goods as being received in apparent good order and condition, and there is no reason under the Rules or otherwise for refusing effect to the bill of lading according to its construction, In any case their Lordships like the majority Judges of the Supreme Court, do not see any reason to dissent from the view expressed by Scrutton, LJ, in Silver's case, sup - at page 425, that Rule 4 of Art. 3 has not the effect of allowing the shipowner to prove that goods which he has stated to be in apparent good order and cos>d!i>.on on shipment were not really in apparent good order and condition as against people who accepted the bill of lading on the faith of the statement contained in it. " It is, thus, clear that in view of Vita Food Products bill of lading was held not to have been issued under the provisions of Carrier of Goods by Sea Ordinance of New Guinea and it was treated to be an agreement between the parties. It, therefore, follows that in such circumstances the principle of estopple was applied. While commenting upon this judgment it would be relevant to mention that the Privy Council did not treat the bills of lading subject to Hague Rules and they were enforceable according to their own term as they were not illegal according to New Foundland Law or by any other relevant law. According to Carver a different view may be possible. Tetley has termed Vita Food Products Inc, as a 'quite discredited decision today, which disregarded the mandatory nature of the Hague Rules.' He has relied on the following judgments. 1. The MORVIKEN (1933) 1 Lloyd's Report 1. 2. Dominion Glass Co. vs The Anglo Indian (1944) SCR 409, 1944 AMC 1407. 3. Ocean S.S. Co, vs Queensland State Wlieat Board, (1941) 1 KB 402, (1940) 68 Lloyd's Law Report 136. 17. The Attorney General Ceylon vs. Scindia Steam Navigation Co, 1962 AC 60 = (1961) 2 LLR 173 and Rcdenaktiebolagest Cmtcr Erikson vs Dr. Fawzi Ahmad Abou Ismail (Tlie Herroe and Askoe). (1986) 2 LLR 281, have followed the Chinese Antimony and Canada & Dominion Sugar Company. The same view has been expressed by the Supreme Court of New South Wales, Commercial Division, Australia in Ace Imports Pty Ltd. vs. Campania De Navega Coolfyds, Brasileiro (Vie Esmeralda I), (1988) 1 LL LR 206. 18. In Attorney General Ceylon , three bills of lading were issued giving the number of packages with a marginal note 'particulars declared by shipper'. Each bill of lading gave number of bags, leading marks, weight and description of content as 'full boiled rice 1953 crop'. The bill of lading contained printed clause 'the weight, contents and value when shipped unknown'. The Privy Council held that the bills of lading were not priina facie evidence of the weight shipped but only of the number of the bags shipped. It was observed that 'this was the result of the incorporation in the bills of lading of the provision, that 'weight' contents and value when shipped unknown' which was a disclaimer of knowledge about weight, contents and value. Reliance was placed on New Chinese Antimony Co. Limited. Tlie Herroe and Askoe, (1986) 2 LLR 281 also followed the same view. With respect we may observe that in Attorney General Ceylon and other similar judgments due note of the effect of the provisions of Carriage of Goods by Sea Act (Hague Rules enactments) has not been taken which provide in detail manner for preparing and issuing a bill of lading with option to the carrier not to mention such particulars which it suspects to be incorrect and finally makes such bill of lading priina facie evidence of the prescribed particulars mentioned in it. These cases have relied upon New Chinese Antimony, (1917) 2 KB 664 which was decided before the enforcement of Hugue Rules enactment. It was decided on the basis of common law. In this case the qualifying words viz. 'weight measurement, contents and value (except for purposes of estimating freight) unknown' were printed in the body of the bill and were treated as term of contract. 19. Carver in his book 'Carriage of Goods by Sea' and 'Scrutton on 'Charter Parties' while commenting on the English Law does not seem to have expressed adverse view on the judgment of the Privy Council. However, Tetley does not favour the views expressed in Attorney General, Ceylon and has referred to Spanish American Skin vs. M/s Femgulf, 1957 AMC 611 (2nd Cir 1957) in which the bill of lading acknowledged receipt of 60 packages stating 'shippers' weight Nett 6.7.2.8" with a rubber stamp reading 'Steamer not responsible for weight, quantity or condition of contents. The Court held that the bill of lading was prima facie evidence of number and weight. Referring to COGSA provision particularly Section 3(3)(c) the court observed: "The carrier must utilize that method, rather than the quite general reservation attempted here. The purpose of the Act to promote uniformity and negotiability of the ocean bills of lading includes a purpose to eliminate the practice of rubber stamp exceptions, limiting carrier liability." According to Tetley this view has been taken in France, Belgium and Greece and he has referred to judgments of those countries at page 289. He finally commented: "The decision in Spanish American Skin vs M/s Ferngulf seems preferable to the finding in A.G. of Coylon. This is because the Hague and Hague/Visby Rules are relatively clear. The carrier is not obliged to state a weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking, (last para of art. 3(3). By art. 3(8), the obligation of Art. 3(3) cannot be lessened. In any event, the courts will weigh all the evidence and require both parties to provide all the proof available to them, because the claused bill of lading at best creates a presumption but cannot create an estoppel, even in the hands of third . parties for value." The view of the learned author seems to be in accord with the spirit and language of COGSA and Hague/Visby Rules. Any remark, covenant or agreement which is in conflict with Section 3(3) (a)(b)(c) lessening, reducing or diminishing carrier's liability or duty imposed by these provisions will be void. Mr. Shariff has referred to The National Electric Radio Refrigeration Company (Pakistan) Limited vs M/s Sachilia Laurs, Naples (Italy) & 3 others, PLD 1977 13. Firstly, that in the same case after appraisal of evidence, trial Court acquitted three accused persons on the ground that satisfactory corroborative evidence was not available against them although they were also named by the eye witnesses with definite roles assigned to them. Acquitted co-accused are Humayun son of Sarwar, Ghulam Hussain son of Ismail and Mohammad Hussain son of Ismail. Very definite role was assigned by prosecution to Ghulam Hussain in the motive as he had refused to make payment of "committee" money to the deceased. He was present at the spot and instigated. He fired a shot from his pistol at Sadiq. A The other two were also present at the spot duly armed and participated in the ] assault as is alleged. Acquittal by the trial Court and against it non-interference by the High Court in the revision is mainly for the reason that corroborative evidence in support of statements of eye witnesses is not available. The same test will apply in case of the present appellant as well. 14. Secondly, clear cut time is not given and pin-pointed by the prosecution for incident. This aspect is to be examined in the context of rinding whether incident could have been seen and whether there was sufficient light in which assailants could be identified and minute details of incident could be noted as alleged by the eye witnesses. In FIR Ex.PE (page 116 of H.C. paper book) time of incident mentioned is Sham Vela (evening time). In the narration mention is made by the complainant about prelude which preceded incident on t h e same day shown at evening time. It is specifically mentioned in FIR that in the street uv front of houses bulbs were alight. This fact that there were bulbs alight in front of houses in the street producing sufficient light to enable eye witnesses to see minute details of the incident as claimed by them, is not confirmed by PW-18 I.O. Ahmad Shuja, who inspected the spot on the following morning but did not prepare inspection memo. He could have said that there were bulbs in front of houses in the street. In such circumstances it can be presumed that either he was not informed that incident was seen in electric light or that incident took place so quickly that it was not seen by the eye witnesses as claimed by them. Had eye witnesses been present and seen the incident, then specific time of incident could have been given in FIR. 15. Thirdly, according to the FIR four eye witnesses saw the incident out of whom two have been examined who are closely related to the deceased and the other two have not been examined. It is surprising that from these four eye witnesses none rushed to the police station immediately after the incident, which was at a distance of 2-1/2 furlongs from the spot. Positively complainant claimed in his deposition that all the four eye witnesses put injured Sadiq in the car and took him to hospital. Anxiety to take the injured immediately to the hospital is understandable but there is no justification for the lapse that one of four eye witnesses should not run up to the police station promptly for lodging the report. 16. Fourthly, in connection with not lodging FIR promptly the role played by I.O. Ahmad Shuja is also not free from doubt and is shrouded in mystery. It is stated by him in the cross-examination (page 48 of H.C. paper book) that he received information about this occurrence outside the police station through some-one. He did not give any particulars of that someone nor noted his name and address. He did not make entry in the daily diary. He did not confirm this news from any one and very strangely did not go to the spot which was at the distance of 2-1/2 furlongs but went straight to Civil Hospital at Sialkot. He did not depute anybody to guard the spot. l.O. stated in his evidence that he received information at about 9-p.m. Complainant in his cross-examination (page 24 of H.C. paper book) stated that occurrence took place at 8 or 8.30 p.m. l.O. has admitted in his cross-examination before the trial Court (page 48 of H.C. paper book) that Fard Biyan Ex.PE-1 of complainant was not in his hand and was dictated by him to Ahmad Ali, ASI. He admitted that in examination-in-chief inadvertantly he stated that it was in his hand. Another startling admission made by l.O. is that when he prepared inquest report eye witnesses were not present in the hospital. It was for that reason that inquest report was not attested by any eye witness nor any one of them was deputed by him to take the dead body to mortuary for its identification at the time of post-mortem examination. In this context deposition of PW-9 Dr. Amjad Iqbal, who conducted postmortem examination on the dead body mentions this fact (page 9 of H.C. paper book) that dead body was identified by Malik Muhammad Nasir son of Miran Bux and Muhammad Suiun son of Muhammad Sadiq. Needless to say that neither Nasir nor Sultan is named as eye witness in FIR. 17. Fifthly, very confidently complainant stated in FIR that Ashiq was armed with rifle with which he fired at Sadiq. He also hit Sadiq on the head with butt of rifle. In evidence before the trial Court, complainant took somersault and stated that Ashiq was armed with gun. Substitution of rifle with gun by the complainant is for the reason that Dr. Amjad Iqbal after post-mortem examination gave finding that from fire arm injury at thigh attributed to the appellant, 27 small pellets were removed and sealed in the bottle. Substitution of rifle with gun became necessary for the complainant to make his evidence consistent with medical evidence. Rifle was mentioned in FIR, may be for the reason that police had picked up from the spot amongst other things, a magazine of rifle containing live bullets. Complainant claimed in his deposition that when hL father fell down on the ground, he received incised wound on the palm of his right hand with a piece of broken glass lying on the ground. He also claimed to have said so in his earlier statement recorded under Section 161 Cr.P.C. but when confronted it was found that it was not so recorded. Complainant claimed in his deposition that his father received injury on his right buttock due to his tossing on the ground. He had stated in his police statement that his father received injury on his right buttock due to his tossing on the ground but when confronted it was found that it was not so recorded. Complainant in his cross-examination (page 26 of H.C. paper book) admitted in unequivocal terms that he did not go to the police station for lodging the FIR and did not know if anyone from eye witnesses accompanying the injured to the hospital went to the police station for report as all had gone together to hospital at Sialkot. Complainant denied suggestion that he did not inform police in time because they were still cooking up story of incident. Complainant admitted that the place of occurrence was flanked by shops and they did not produce any witness from those shop keepers before the police during investigation. 18. Sixthly, second eye witness PW-8 Muhammad Riaz is brother of deceased. His evidence is on the same lines as that of the complainant. According to him when Muhammad Sadiq went out to speak to the assailants and assailants advanced towards him they passed the gate of his house. He admitted that in the street on both sides there were shops but none from the shop-keepers came till the occurrence was over. After the incident shop-keepers did come and appeared before the police and their statements were recorded but none of them was cited as witness. He claimed that no accused was carrying any sharp edged weapon. At the time of occurrence some pellets hit the door of his house. He went on seeing the incident from the door of his house which he kept ajar. He did not know from where Shafi, Latif and Nawaz saw the incident. He only saw them at the spot after departure of assailants when they were removing the injured. This witness has admitted that he did not depute any person to go to the police station for lodging FIR and also during their stay in hospital he did not send anybody for report. He denied having seen Ashiq in injured condition in Daska Hospital. He did not give any explanation as to why he did not identify the dead body of his brother at the time of post-mortem examination. He deposed that he did not point out any thing at the spot to the police and draftsman and in hospital statements were recorded before autopsy. 19. Seventhly, ocular version is not consistent with medical evidence of the doctor and post-mortem report which show that deceased sustained only two fire arm injuries, one in the thigh and the other above right ear with remaining abrasions and one lacerated wound and one contusion. Ocular version is that Ashiq fired at Sadiq at knee and hit him with butt of the gun on head. After Sadiq fell down Ghulam Hussain fired at him with pistol. Attempt was made by eye witnesses to explain incised wound found on the right palm of deceased by saving that when deceased fell down his hand was cut with a piece of glass lying on the ground which is simply not possible if incident took place at night and was seen in the light of bulbs particularly, when both eye witnesses do not claim to be present outside any very close to the spot. It is simply not possible for a witness to see from door ajar that deceased sustained cut wound on the hand with piece of glass on the ground particularly when his door was hit by pellets as claimed by him. Incidentally I.O. stated in his cross-examination that he did not find any bullet or pellet mark on the doors of the houses near the spot. If butt of gun or rifle got broken at the spot when Ashiq hit Sadiq on his head, then injury of such magnitude and impact causing fracture of skull with corresponding damage should have been found out but as per medical report injury No.9 was lacerated wound 5 x 5 cm muscle deep on the left side of the head 10 cm from left ear and was declared by the doctor to be simple'in nature because he declared only injury No. 1 on thigh caused by fire arm to be fatal and sufficient to cause death and found all other injuries to be simple in nature. On the other hand, from the spot two pieces of butt were found, which shows that gun was broken but in what manner that still remains to be found out. Version of eye witnesses on this point is not convincing and reliable. It is possible that gun got broken in some other way which eye witnesses are unable to explain as they had not seen the incident or they are lying. This only shows that incident has not taken place in the manner as is claimed by the eye witnesses. We do not feel inclined to rely upon these eye witnesses. We do not feel certain that these witnesses were really present at the spot because had it been so, such discrepancies and lapses would not have occurred as are specifically mentioned above. 20. There is no corroborative evidence in this case of satisfactory nature to warrant finding of conviction. So far evidence of recovery of weapons and crime empties from the spot and positive finding of Ballistic Expert are concerned, even trial Court did not believe that evidence for valid reasons. So far appellant Ashiq is concerned, PW-18 I.O. Ahmad Shuja has deposed that he arrested Ashiq Hussain on 25.11.1987, who produced certified copy of Medico Legal Report. It is mentioned specifically in FIR that accused persons had taken Ashiq with selfinflicted injuries to Civil Hospital, Daska. In such circumstances, there was no impediment in the way of I.O. to have arrested Ashiq from the hospital immediately after registration of FIR. I.O. has given no reason or explanation for not arresting Ashiq earlier than 25.11.1987 from the hospital where he was admitted. Dr. Sajjad Nabi examined as C.W-1 has testified before the trial Court that he examined Ashiq Hussain on 21.11.1987 at 9.15 p.m. in Civil Hospital, Daska and found four injuries on his person of which injury No.3 was contusion with swelling 7 x 6 cm on the back of right hand with bones fractured and declared grievous. Injured was admitted and discharged on 25.11.1987. If Ashiq was admitted in the hospital then formal arrest could have been shown and his interrogation could have been made. I.O. arrested Ashiq Hussain on 25.11.1987 and made recovery of gun from him on 8.12.1987 as per memo Ex.PJ. I.O. has not explained why recovery was made after delay of about 13 days during which appeUant remained in police custody. Any way recovery witness PW-12 Manzoor Ahmad has deposed that Ashiq Hussain took police inside his Dera and gun was recovered from underneath iron chest. It is stated by this witness that Humayun and Ashiq Hussain both produced guns from underneath the same iron chest in the same room of Dera. When police party came to the Dera of Ashiq one pr twp persons were present there, who disappeared after seeing the police. Dera was lying open. It had only one gate. From one room both Humayun and Ashiq produced their guns lying underneath iron chest. Doors of both rooms in the Dera were open. In such circumstances it cannot be said that gun was recovered from exclusive possession of Ashiq. Another important note-worthy factor of this recovery is that in the recovery memo ExJPJ (page 122 of H.C. paper book), which is written in Urdu language, it is mentioned that one gun 12 bore No. 390 with further particulars mentioned therein was recovered but there is no mention in it that its butt was broken. Recovery witness Manzoor Ahmad also did not state in his evidence that butt of the gun produced by Ashiq was broken. 21. PW-12 Manzoor Ahmad in his deposition stated that he was not related to the deceased, who was his tribe's man. Two factors appear clearly from his evidence. Firstly, that recovery of gun was not from exclusive possession of the appellant and secondly, its butt was not broken or appeared so at the time of recovery and sealing into a parcel. Evidence of this witness is accepted by the prosecution in toto and relied upon without dispute and he is not declared hostile. PW-6 Adalat Khan, constable, has deposed that on 10.12.1987 he carried two sealed parcels, out of which one was delivered at the Laboratory of Chemical Examiner and the other was returned by Forensic Science Laboratory under an objection. He returned that parcel to ASI Muhammad Yousuf. On 13.12.1987, he received four sealed parcels which he delivered intact in the office of Forensic Science Laboratory, Lahore. PW-5 Muhammad Yousuf ASI, confirmed the return of parcels under objection and explained in his deposition that on 9.12.1987, Ahmad Shuja Sub Inspector gave him three sealed parcels, one of double barrel gun, the other of single barrel 12 bore gun and third of revolver. On 13.12.1987 he handed over those parcels and also parcel of cartridges, which had been returned earlier under objection, to the same constable for delivery at the Laboratory. ASI has admitted in his evidence that first he sent only parcel of empties because dockets could not be obtained for sending parcels containing guns and revolver. He denied suggestion that objection raised by the Laboratory was that there was variation between seals on the parcels and those mentioned in the dockets. Report of Forensic Science Laboratory Ex.PV (page 14 of H.C. paper book) shows that parcels were received in the Laboratory together on 13.12.1987 through Constable Adalat. Apart from the facts that appellant Ashiq Hussain was not arrested earlier when he was admitted in the hospital and the parcels were dealt with in the manner stated above and also that crime empties and guns were sent together, recovery of gun from appellant after 13 days of his arrest is not free from doubt. In support of the proposition, reference can be made to the case of Abdul Rehman vs. The State reported in 1983 S.C.M.R 958. 22. The evidence of recoveries as commented upon above and matching of pieces of butt recovered from the spot with gun of Ashiq are highly suspect. Medical evidence is corroborative in other particulars but not qua accused. Similarly, evidence of motive is also not satisfactory for the reasons that main grievance of the deceased was against Ghulam Hussain who refused to give balance of "committee" money and was acquitted by the trial Court inspite of the fact that he was present at the spot at the time of incident and instigated and also fired at deceased. 23. Defence plea is that appellant Ashiq Hussain did not participate in the incident as he was admitted in the hospital with injuries at the relevant time. Defence plea is supported by CW-1 Dr. Sajjad Nabi, who claims to have examined [Ashiq Hussain in Civil Hospital, Daska, on the day of incident at 9.15 p.m. On medical examination Ashiq Hussain was found having sustained four injuries including a contusion on the right hand causing fracture of bones. This witness was cross-examined extensively on behalf of the prosecution, particularly in respect of some over-writings in the record. It was suggested to the Doctor in the cross-examination that acquitted co-accused Ghulam Hussain Councillor was a friend of his father, who was practicing privately in city Daska, which was denied by him. Another witness who has supported defence plea is DSP Ghulam Muhammad who was examined in the trial Court as Court witness. He deposed that he was given investigation of this case and found out and concluded that Ashiq Hussain did not participate in the occurrence as he was admitted in the hospital at that time. In that connection he had examined some witnesses also. He had also verified the progress of investigation made by Sub Inspector Ahmad Shuja and had studied the case diary. He had given detailed report on 11.1.1988 with finding that Ashiq Hussain was not present at the time of incident. Defence pka was criticised in the trial Court on the grounds that case of injuries of appellant Ashiq Hussain was a medico-legal case as soch police should have been ] informed and police ca.se should have been Bled la this respect Mst. Allah Rakhi, mother of Ashiq Hussain had addressed an application to Superintendent of Police for registration of case in respect of case for injuries to his son and this application is dated 25.11.1987, when incident took place on 21.11.1987. While considering defence plea, one other factor, which is relevant, is that I.O. Ahmad Shuja has admitted in his cross-examination before the trial Court that it was ecr» v£ that investigation of the case from him was transferred on the complaint by accused party. He also denied suggestions in the corss-examination that he planted gun Ex.p-11 en Ashiq Hussain ami manipulated the empties and that he investigated the case under the influence of the complainant party. This defence plea even if not proved is sufficient to cast doubt in the credibility of the prosecution case, which has already become doubtful for the facts and reasons mentioned above. i 24. It is needless to repeat that ft is beunden duty of the prosecution to prove the case against accused beyond doubt "and this duty does not change or vary in the case in which any defence pka is taken. Burden of prosecution to prove its case beyond doubt remaias the same. Of course, defence plea is to be considered in juxta-position with prosecution case and in the final analysis if defence plea is proved or accepted then prosecutkm case would stand shattered and discredited. It would be enough if pka is substantiated to the extent of creating doubt in the credibility of the prosecution case. If defence plea is not substantiated, no benefit accrues to the prosecution on that account and its duty to prove the case beyond doubt would not be diminished even if defence plea is not proved or is found to be palpably false. In support of the proposition, reference can be made to the case of Alt Sher vs. State reported in PLD 1980 S.C. 317. In the impugned judgment against above proposition, reliance is placed on the case of Khalid Javid vs. State (PLJ 1983 Cr.C (Lahore) 417) which is distinguishable as facts in that case are different. We are of the view that in the instant case prosecution has failed in its initial duty to prove the case against the appellant beyond doubt and if defence has failed to substantiate the plea of alibi, it does not improve the case of the prosecution. 25. For facts and reasons stated above, we are of the considered opinion that this is a fit case in which benefit of doubt can be extended to the appellant. We, M therefore, set aside his conviction and sentence and allow his appeal. He may be set at liberty if not wanted in any other case. (MBC) (Approved for reporting) Appeal accepted

PIJ 1993 SC 103 [Appellate Jurisdiction] PIJ 1993 SC 103 [Appellate Jurisdiction] Present: saad saood jan ant> sai.eem akhtar, JJ MUHAMMAD YASIN-Appellant versus Sh. HANIF AHMED and 4 others-Respondents Civil Appeal No. 1075 of 1990, accepted on 18.11.1992 (approved for reporting on 1.12.1992) [From order of Lahore High Court, dated 21.5.1989, passed in W.P. No. 474 of 1989] Civil Procedure Code, 1908 (V of 1908)-- —S. 12(2) read with Arbitration Act, 1940, Sections 14, 17, 30, 33 & 41-Award made rule of court-Fraud and misrepresentation-Allegation of-Whether Section 12(2) of C.P.C. is available-Question of-Appellant's case throughout had been that he had neither executed a power of attorney nor signed any agreement and nobody was authorised on his behalf to refer to arbitration or consent to award-Immediately on coming to know about fraud, he filed an application under Section 33 of Act read with Section 12(2) of C.P.C.-Decree passed under Section 17 of Act cannot be challenged under Section 39 of Act and Sections 30 and 33 cannot be invoked to set aside such decree—Under Section 12(2) of C.P.C. a person can challenge validity of a judgment, decree or an order on plea of fraud, misrepresentation and want of jurisdiction-Held: Application should have been considered on merits instead of dismissing it on technical ground that no application under Section 12(2) was maintainable-Appeal allowed and case remanded for decision on merits. [Pp.l05&106}A,B&C PLJ 1988 SC 33 and PLD 1991 SC 197 distinguished. Mr. Muhammad Zainul Abidin, Advocate, Supreme Court, and Mr. S.M. Tayyab, Advocate, Supreme Court, with Ch. Mehdi Khan Mehtab. AOR for Appellant. Ch. Hamiditddin, Senior Advocate, Supreme Court and Mr. M. Aslam Chaudhry, AOR for Respondents. Date of hearing: 18.11.1992. judgment Saleem Akhtar, J.-The dispute relates to a building site bearing No. 15/2%/B situated in Satellite Town Sargodha which was allotted to the appellant in 1979 by the Government. On 23rd June 1985 respondent No. 1 filed an application under Section 14 of the Arbitration Act against the appellant praying that the Arbitrator Javaid Iqbal be summoned to file the award dated 2.6.1985 in the Court which may be made rule of the Court and decree may be passed accordingly. This application was sought to be served on the appellant through Perveen Akhtar wife of Muhammad Yousaf describing her as the attorney of the appellant. It seems that in pursuance of this proceeding the award was filed and with the consent of Pcrveen Akhtar it was made rule of the Court. The appellant filed a petition under Section 12(2) read with Section 151 CPC and Section 33 of the Arbitration Act for setting aside the decree passed on the basis of the award on the ground that it was obtained by fraud and mis­ representation as he had never executed a power of attorney in favour of Perveen Akthar nor entered into an arbitration agreement nor consented or authorised any-body to consent for a decree. The arbitrator and respondent No.l filed written statement jointly. The learned Civil Judge framed several issues and on consideration of evidence dismissed the appellant's application. In an appeal preferred by the appellant the learned Distrirf Judge came to the conclusion that the decree was procured by fraud and forgery and consequently the decree passed by the learned Civil Judge was set aside. Respondent No.l challenged the judgment of the learned Additional District Judge in a writ peuion. The learned Judge in Chamber without entering into the merits of the case or upsetting the order of the learned Additional District Judge held that application under Section 12(2) CPC was not maintainable in arbitration case and accepted the petition. Leave was granted to the appellant to consider whether the learned Judge of the Lahore High Court has correctly interpreted the judgment in the case of M/s Combined Enterprises vs. Water and Power Development Authority (WAPDA) PLJ 1988 SC 33. It was also to be considered whether the wrong nomenclature of proceedings before any Court which otherwise had jurisdiction to entertain the same and give verdict on merit thereof could at all he treated as real bar to grant of relief in accordance with law and jurisdiction and further that if there was any bar in the description of provision relied upon by the appellant in application before the District Court could it not be corrected by the District Court or by the High Court and could it not be even converted into a proceeding as required by law. The impugned judgment proceeded on the assumption that in the facts and circumstances of (he case Section 12(2) CPC and Sections 30 or 33 of Arbitration Act were not applicable. Section 12(2) was held not to be applicable as CPC did not apply to arbitration proceedings while Sections 30 and 33 were held in­ applicable as no such remedy was sought from the Court in the first instance which has become out of time and decree has already been passed. Section 39 would also not apply as there exists no order appealable as defined in it. The appellant's case through-out had been that he had neither executed a power of attorney nor signed any agreement and nobody was authorised on his behalf to refer to arbitration or consent to the award. The allegation was that the award was obtained by fraud and mis-representation which was not within his knowledge and no sooner he came to know about it he filed application under Section 33 of Arbitration Act read with Section 12(2) CPC. The question for consideration is whether Section 12(2) CPC will apply where a decree has been passed under Section 17 of the Arbitration Act hereinafter referred as the Act. Where an award is filed in Court in pursuance of notice under Section J4 of the Act and after hearing of objections, if any, filed by any party, or where no objection is filed, on expiry of the time fixed for making an application to set aside the award has expired and there is no cause to remit the award, the decree is passed in terms of the award. Section 17 of the Act further provides that no appeal shall lie from such decree except on the ground that it is in excess of or not in accordance with the award. Therefore the decree passed under Section 17 cannot be challenged under Section 39 of the Act. The appeal can be filed only on grounds specified under Section 17 itself. Where a decree has been passed the award merges in the decree and such decree can be challenged in a limited manner specified above. In order to set aside such a decree which is passed on award, Sections 30 and 33 of the Act cannot be invoked. Section 30 provides the grounds for setting aside the award while Section 33 permits any party to an arbitration agreement to challenge the existence and validity of an arbitration agreement or an award or the effect of either determination by the Court. Under Section 12(2) a person can challenge the validity of a judgment, decree or an order on the plea of fraud, mis-representation and want of jurisdiction. As provided by Section 41 of the Act the applicability of the provisions of CPC to proceedings under the Act are subject to the provisions of the Act. The provisions of CPC are applicable except in cases where its applicability is excluded by the Act. In Combined Enterprises vs. WAPDA PLJ 1988 SC 33 this Court considered the question of applicability of CPC in arbitration proceedings particularly relating to setting aside the award. After analysing Sections 31, 32, 33 and 41 of the Act it was observed as follows:- The reference and the award could only be interfered with in the manner laid down by Sections 30, 31, 32 and 33 and to that extent the provisions of the Code of Civil Procedure are expressly excluded and no Court other than that mentioned therein could deal with the matter." It was further observed that the Code of Civil Procedure is applicable only subject to the provision of Section 23(2) and Section 32 of the Arbitration Act. In Government ofSindh vs. Fazal Mahmood PLD 1991 SC 197 the appellants had the opportunity to take all objections to the award which they had filed earlier and were rejected. Thereafter they were not allowed to press the same objections under Section 12(2) CPC to challenge the validity of judgment and decree passed on the basis of the award. In both these judgments the question whether a decree passed on the basis of the award can be challenged by an application under Section 12(2) CPC was not considered. Sections 30 and 33 refer to only awards and not decree passed on the basis of the award. Under the Arbitration Act there is no provision for challenging such decree on the ground that it has been obtained by mis­ representation and fraud. Therefore applicability of Section 12(2) CPC has not been excluded. In the present case the appellant had filed application under Section 33 of the Act and Section 12(2) CPC. It seems to be composite application for determination of the effect of the agreement as provided by Section 33 and challenging the decree on ground of fraud and mis-representation. The application therefore should have been considered on merits instead of dismissing it on technical ground that no application under Section 12(2) was maintainable. From the above discussion it is clear that in the facts and circumstances of the case application under both the provisions was maintainable. We, therefore, allow the appeal and remand the case for hearing on merits. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 107 [Appellate Jurisdiction] PLJ 1993 SC 107 [Appellate Jurisdiction] Present: SHAFiUR rahman and sajjad ali shah, JJ MUHAMMAD SIDDIQUE and 8 others-Appellants versus HAMEEDULLAH and 5 others-Respondents Civil Appeal No. 1108 of 1990, accepted on 30.11.1992 (approved for reporting on 5.12.1992) [On appeal from judgment/order of Lahore High Court, dated 22.12.1986, passed in FAO No. 178 of 1984] Restoration- —Appeal before District Court-Dismissal for non-prosecution of~Application under Order XLI Rule 19 of CPC for restoration of appeal-Dismissal of- Appeal also dismissed by High Court-Challenge to-Joint affidavit of three advocates that Mr. Abdur Rahman Ghazi was not authorised by them to appear, was not accepted by High Court on ground that from three deponents, only one had appeared before Oath Commissioner, therefore, affidavit did not fulfil requirements contemplated for it—Although Mr. Abdur Rahman Ghazi has not specifically stated in affidavit in first singular that he did not appear on behalf of appellants, but other two deponents have made categorical assertion that they were counsel for appellants and they did not authorise Mr. Ghazi to appear on their behalf-Held: Even if this affidavit is not treated as affidavit sworn by Mr. Abdur Rehman Ghazi, it can be treated as writing duly signed by him containing his admission to that effect-Appeal accepted and case remanded to Addl. District Judge for decision of restoration application according to law. [Pp.l08&109]A&B Ch. Muzammal Khan, Advocate, Supreme Court and S. Abul Aasim Jafri, AOR for Appellants. 5. Inayat Hussain, AOR for Respondents. Date of hearing: 30.11.1992. judgment Sajjad AH Shah, J.-This appeal with leave of the Court is directed against order dated 22.12.1986 passed by Lahore High Court, Lahore, whereby FA.O. No. 178 of 1984 is dismissed in limine. Appellants before us were appellants in the District Court and their appeal was dismissed for non-prosecution by Additional District Judge, Sialkot. Application under order XLI Rule 19 C.P.C. was filed which was dismissed for non-prosecution on 20.2.1984. Application for restoration of application was filed, which was dismissed vide order dated 3.7;1984 and this order was impugned in appeal before the High Court, which is dismissed as stated above. 2. Leave is granted by this Court to examine the contentions of appellants before us that they were unaware that their application for restoration was transferred to another Court and further the transferee Court did not give notice of hearing and on that account order of dismissal of their application for nonprosecution was unjustified. 3. In the memo of appeal filed in the High Court, it is stated that their appeal was transferred to the Court of Mr. Saleem Akhtar Khan, A.D.J. and was dismissed for non-prosecution on 26.2.1983. Application for restoration was filed and during pendency of that application the case was transferred to the Court of A.D.J. Rai Muhammad Zafar Bhatti, who dismissed the said application for nonprosecution on 20.2.1984. It is contended on behalf of the appellants that they were unaware about the transfer and transferee Court did not issue notice of hearing. It appears from the order of A.D.J dated 3.7.1984 that restoration application was dismissed on 20.2.1984 and date earlier than that was 3.12.1983 on which date the appeal was transferred to the Court of A.D.J Rai Muhammad Zafar Bhatti and on that day Mr. Abdul Rehman Ghazi, advocate was present on behalf of the appellants and hearing was adjourned to 20.2.1984 for arguments. On the adjourned date nobody appeared for appellants, hence dismissal for nonprosecution of application was legal and proper as advocate of the appellants had knowledge of the date of hearing. Once counsel attended, question of non-issue of notice by transferee Court becomes redundant. 4. In the High Court contention was raised on behalf of the appellants that Mr. Abdul Rehman Ghazi advocate, who appeared before learned A.DJ on 3.12.1983 was not their advocate and was not authorised to appear on their behalf. Advocates who were authorised to appear on behalf of the appellants were Ch. Mushtaq Ahmad and Rana Nasrullah Khan. In that context joint affidavit was filed by all the three advocates named above in which Messrs Mushtaq Ahmad and Rana Nasrullah Khan stated that they did not authorise Mr. Abdul Rehman Ghazi to appear on their behalf before A.D..I Sialkot in this case on 3.12.1983 and further they did not get any notice of hearing from the transferee Court. This affidavit is signed by all the three advocates named above as deponents. It is attested by Oath Commissioner. 5. High Court declined to accept the affidavit on the ground that from three deponents only Ch. Mushtaq Ahmad Khan advocate appeared before the Oath Commissioner as per verification and other two deponents signed the same A without 'appearing before the Oath Commissioner and in the circumstances affidavit did not fulfil the requirements contemplated for it. Learned counsel for the respondents appearing before us also criticised this affidavit on the ground that its authenticity was doublful and it is not drawn up according to legal requirements, hence not fit to be relied upon. We have seen this affidavit in the record of the High Court which was sent for by us. It is correct that in this affidavit Mr. Abdul Rchman Ghazi does not say specifically in first singular that he did not appear on behalf of appellants before A.DJ on that day but the other two deponents have made categorical assertion that they were advocates of appellants and had not authorised Mr. Abdul Rehman Ghazi, to appear on their behalf before the Court on that day and Mr. Abdul Rehman Ghazi after reading the contents has signed this statement and his signature, which is not disputed, clearly shows that he knew what was being stated to the effect that he appeared but not on behalf of the appellants and was not authorised by the advocates of the appellants to do so and consequently appearance of his name in the case diary of ] this case before learned A.D.J was due to some confusion. If this affidavit is not accepted as affidavit on behalf of Mr. Abdul Rehman Ghazi because it does not fulfil the requirements, then it can be treated as a writing signed by him containing admission of fact mentioned therein. Learned counsel for the respondents also submitted that no further enquiry can be made from Mr. Abdul Rehman Ghazi for the reason that he is now settled in U.S.A. Even if this affidavit is not treated as affidavit sworn by Mr. Abdul Rehman Ghazi, we treat it as writing duly signed by him containing his admission to that effect. We accept his admission that he appeared unauthorisedly on that day and his presence was noted in that case due to confusion. In such circumstances it can be said that Mr. Mushtaq Ahmad advocate, who has sworn the affidavit before the Oath Commissioner as per verification has stated on oath that notice was not received by them by the transferee Court and this statement cannot be brushed aside in the absence of positive rebuttal. 6. For facts and reasons stated above, we set aside order of the High Court and that of learned A.DJ in this context and remand the case to learned A.DJ for disposal of application for restoration of application filed on 27.2.1984 according to law and merits. In the result appeal is allowed with no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 109 [Appellate Jurisdiction] PLJ 1993 SC 109 [Appellate Jurisdiction] Present: saad saood jan, sai.ffm akiitar and wai.i muhammad khan, JJ Mirza MUHAMMAD SHARIF and 2 others-Appellants versus Msl. NAWAB BIBI and 4 others-Respondents Civil Appeals Nos. 950 and 9.51 of 1990, accepted on 21.11.1992 (approved for reporting on 7 12.1992) [On appeal from judgment/order dated 7.3.1990, of Lahore High Court, passed in RSA No. 308 of 1983 and W.P. No. 5207 of 1983] Appraisal of Evidence- —Declaration-Suit for-Whether respondents had proved that mortgage and sale deeds executed by their predecessor were forged, fictitious, fraudulent and without consideration-Question of-Two witnesses produced by respondents (plaintiffs), instead of supporting their case, contradicted them and negatived their case—On other hand, appellants' witness DW 1, scribe of sale deed, was not cross-examined and presumption can safely be drawn that his version was accepted by respondents-Appellant No. 1 appeared as his own witness and stated that he had appeared before Sub Registrar on behalf of his sons (appellants 2 and 3) at time of registration of sale deed and payment of sale consideration, but he was not cross-examined in this respect-Held: Sale deed and rent note were duly executed by respondent's predecessor and consideration therefor was duly paid to him-Held further: There is no evidence worth name on file to show that sale deed was forged and fictitious-­ Appeal accepted and ejectment of respondents ordered. [Pp.ll3,114&115]A,B&C Mr. Asif Saeed Kliosa, Advocate, Supreme Court, and Ch. Mehdi Khan Mchtab, AOR for Appellants (in both appeals). Mr. Gangri, Advocate, Supreme Court and Mr. Tanvir Ahmad, AOR for Respondents 1 to 4 (in both appeals). Date of hearing: 21.11.1992. judgment Wali Muhammad Khan, J.--Siraj Din, predecessor-in-interest of the plaintiffs/respondents 1 to 5 herein, was the owner of the suit house bearing No. SE-IV-5-S-19, Sadar Street , Garhi Shahu, Lahore consisting of two rooms, one buithuk, kitchen, verandah and courtyard. He mortgaged the same vide registered mortgage deed executed on 23.3.1%9 and registered on 26.3.1969 (copy Ex.P.l) in favour of Mirza Muhammad Sharif defendant No. 1, appellant No. 1 herein, in lieu of Rs. 5,500/- out of which Rs. 2000/- were received by him before the Sub Registrar while the remaining sum of Rs. 3,500/- was acknowledged to have been received prior to the execution of the mortgage deed. He subsequently sold the same vide registered sale deed dated 18.11.1969, registered on 20.11.1969 in favour of Muhammad Idrecs and Muhammad Siddique sons of Muhammad Sharif defendants 2 and 3, appellants 2 and 3 herein, for a total consideration of Rs. 10,000/- in 'which the mortgage amount was adjusted and the balance of Rs. 4,500/- was received before the Sub Registrar (copy Ex.D.l). Simultaneously with the execution of the sale deed the vendor Siraj Din executed a rent note in favour of the vendees/appellants 2 and 3 whereby he agreed to continue in possession of the suit house on payment of Rs. 80/- per month as rent. He died on 28.10.1970 which resulted in the estrangement of relations between them and the default in payment of agreed rent. Appellants 2 and 3 filed an eviction petition bearing No. 35/2 of 1978 against the heirs of Siraj Din on the ground of default. On the denial of the relationship of landlord and tenant a preliminary issue to this effect was framed by the learned Rent Controller and the parties put to trial on this limited question. As a counter blast the respondents filed a suit for declaration to the effect that they are owners of the suit property; that the alleged mortgage deed, sale deed and the rent deed are forged, fictitious, fraudulent and without consideration, with a prayer for perpetual injunction against the appellants to restrain them from interference in their possession. This suit was contested by the appellants and they, in their written statements, controverted all the allegations of the respondents in toto. The learned trial Court, keeping in view the pleadings of the parties, framed the following issues:- 1. Whether the impugned sale deed dated 20.11.1969, Mortgage deed dated 26.3.1969 and rent note dated 18.11.1969 are void, without consideration and nullity in the eyes of law? OPP. 2. Whether the suit is not maintainable in its present form? OPD. 3. Whether the suit is properly valued for the purposes of court-fee and jurisdiction? OPP 4. Whether the suit is bad for misjoinder of causes of action and misjoinder of parties? OPD. 5. Whether the suit is vexatious and frivolous? OPD. Evidence led pro and contra on the above issues was recorded and the learned trial Judge on the appraisal of evidence so produced, vide his judgment and decree dated 31.1.1981 dismissed the suit of the plaintiffs. Not content with the same, the respondents preferred appeal before the learned Additional District Judge, who with the consent of the learned counsel for the parties, directed the trial Court to record its findings on the issues left undecided vide his order dated 15.9.1981 under order 41 rule 25 CPC and to remit the same back to the appellate Court. The same was complied with by the trial Court vide its findings dated 12.10.1981. The learned Additional District Judge after hearing the arguments of the learned counsel for the parties finally came to the conclusion, vide order dated 10.9.1983, that the impugned documents had not been proved according to law, that the passing of consideration had not been established and that the trial Court had not appreciated the evidence in its true perspective and accordingly, on the acceptance of appeal, set aside the judgment and decree of the trial Court. It is worthwhile to mention here that the eviction petition was also decided by the same trial Court exercising the powers of Rent Controller and finding relationship of landlord and tenant having been proved the petition was allowed and the respondents were directed to hand-over vacant possession of the disputed premises to the appellants/landlords. An appeal was filed against it also before the same learned Additional District Judge which was also accepted and the eviction order set aside. This time the appellants filed Regular Second Appeal No 308/83 against the judgment of the appellate Court dated 10.9.1983 in the civil suit and challenged the judgment of the appellate Court in the rent matter through writ petition No. 5207/83. Both were heard by a learned Single Judge of the Lahore High Court who vide separate judgments dated 7.3.1990 partly accepted the Regular Second Appeal and while maintaining the judgments of the lower two forums qua the sale deed and rent deed, dismissed the suit of the plaintiffs/respondents regarding the mortgage deed. The writ petition was resultantly dismissed. Two petitions for leave to appeal bearing No. 358/90 and 359/90 were filed against the aforementioned judgments of the High Court in which leave was granted and hence the instant two Civil Appeals bearing No. 950/90 and 951/90, respectively. Since both the appeals involve common question of law and fact they are being disposed of through this consolidated judgment. The leave granting order is as follows:- "In dismissing the appeal of the petitioners with regard to the sale deed and the rent note, the learned Single Judge was mainly influenced by the fact that both these documents were in possession of the petitioners; yet they had not cared to produce them in the Court. He took the view that in (he absence of original documents, secondary evidence with regard to their content was inadmissible under Article 77 of the Qanun-r-Shahadat Order. Learned counsel for the petitioners points out that the original sale deed was in fact produced before the Court which after examining the same had allowed the petitioners to place a copy thereof on the record. In the circumstances it could not be said that the original sale deed was not produced in the Court by the petitioners. The High Court was, therefore, not justified in decreeing the suit of the respondents with regard to the sale deed at least. The contentions raised in support of these petitions need examination. Leave to appeal is granted." We have heard Mr. Asif Saeed Khosa, Advocate, for the appellants; Mr. Gangvi, Advocate, for the respondents and have perused the record of the case. The learned counsel for the appellants vehemently argued that the mortgage deed, sale deed and the rent note had been proved according to law and that the finding of the lower forums whereby the evidence with regard to the execution of sale deed was brushed aside, was erroneous. According to him. the appellant-1 had tendered the original sale deed before the Court at the time of his evidence as DW-4 and the Court returned the same to him after its perusal and exhibited the certified copy thereof without any objection by the respondents. He thus explained that there was sufficient compliance with the procedural law contained in order 13 of the Civil Procedure Code regarding production of documentary evidence and that the learned lower forums legally erred in holding that primary evidence had been withheld. The learned counsel for the respondents, on the other hand, controverted the submissions of the learned counsel for the appellants and additionally argued that the payment of the consideration had not been established which was a sine qua non for the completion of the sale transaction in dispute. We have given our anxious consideration to the arguments advanced on either side. The impugned transactions of mortgage and sale are evidenced through registered deeds. The heirs of Siraj Din denied the execution of both of them and dubbed them as forged, fictitious, fraudulent and without consideration. The learned trial Court while framing issues in the case, failed to frame an issue regarding the valid execution of the deeds in question placing burden on the defendants/transferees but couched issue No. 1 in a manner which presupposes the existence of the deeds and required the plaintiffs/respondents to prove the allegation of fraud etc. alleged by them and the burden specifically placed upon them. They neither objected to the framing of this issue in the existing shape nor applied to the Court for framing an issue regarding due execution of the deeds and placing the burden of proof upon the defendants/vendees. Needless to mention that the parties are expected to lead evidence on the issues framed in the case keeping in view the burden of proof placed on particular party. The wrong framing of the issues probably misled the parties in the discharge of burden placed upon them. The plaintiffs/respondents produced Ghulam Badar Bukhari PW-1, scribe of the mortgage deed (copy Ex.P.l) who stated that the impugned mortgage deed was scribed by him at the instance of Chaudhry Siraj Din, predecessor-in-interest of the respondents in favour of Mirza Muhammad Sharif defendant/appellant No. 1, however, no mortgage money was paid in his presence and rightly so because the payment of part of mortgage money had been made prior to the execution of mortgage deed and remaining was paid before the Sub Registrar on the third day of the execution thereof. This witness was never confronted with the mortgage deed scribed by him but since he was a witness for the plaintiffs/respondents they were bound by his statement and the High Court rightly came to the conclusion that the mortgage had been established. The statement of Ali Muhammad PW-2, the attesting witness of the mortgage deed, is to the same effect. These two witnesses instead of supporting the plaintiffs' case contradicted them from which it can be safely concluded that the plaintiffs/respondents had not come to Court with clean hands and part of their claim having been negatived by their own witnesses, their denial about the execution of the sale deed cannot be accepted as gospel truth particularly when their predecessor Siraj Din who executed the documents before independent qualified deed writers and attesting witnesses and received consideration before the Sub Registrar, during his life time, never challenged the documents in question or denied receipt of consideration. On the other hand, the defendants/appellants produced Muhammad Bashir DW-1, the scribe of the sale deed, who deposed that he had scribed the sale deed at the instance of Siraj Din who put his signature thereon. The witness produced his register showing the entry with regard to the sale deed at S. No. 552, the names of Haji Muhammad Latif and Mir/a Muhammad Sharif as witnesses of the deed and the signature of Siraj Din against the relevant entry. He also testified to the correctness of the rent note and its entry at S.No. 553 of the same date. Strangely enough, this witness was not cross-examined and the presumption can safely be drawn that his version was accepted by the opposite party viz., the plaintiffs/respondents. Muhammad Latif DW-2 who was a B.D. Member and apparently disinterested witness, deposed that Siraj Din had duly executed the mortgage deed, sale deed and the rent deed in question which bore his signatures as attesting witness. The defendant appeared as his own witness and produced the original sale deed which, as stated earlier, was returned to him by the Court after perusal and its copy exhibited as Ex.D.2. Muhammad Sharif had appeared before the Sub Registrar on behalf of his sons appellants 2 and 3 at the time of registration of the sale deed and the payment of sale consideration. He was not cross-examined either about the due execution of the sale deed or the payment of sale consideration before the Sub Registrar. In view of the evidence detailed above, we are fully convinced that the sale deed and the rent note were duly executed by Siraj Din and the consideration therefor was duly paid to him.Nevertheless, the learned Single Judge of the High Court has taken pains in discussing the legal aspect of the case and dilating upon the various provisions of the Qanun-e-Shahadat and the Civil Procedure Code with regard to production and proof of documents. There is no cavil with the legal requirement of law as discussed by the learned Judge of the High Court and we would have readily concurred with him if the original sale deed had not been tendered in evidence by appellant No. 1 while stating the case of the appellants as DW-4. He did comply with the mandatory provision of the Civil Procedure Code by producing the primary evidence 'viz., the registered sale deed and if the trial Court rest contented g with exhibiting the certified copy thereof and returned the original presumably for safe custody, without any objection by the opposite side, we do not find any fault on the part of the defendants/appellants in not insisting upon the Court for exhibiting the original. It is by now well settled that registered document has sanctity attached to it and stronger evidence is required to cast aspersion on its genuineness. There is no evidence worth the name on the file to show that the sale deed was forged and fictitious. On the contrary the attesting witnesses and the scribe have testified to its genuineness. The mere fact that their statements do not mention the perusal of the original sale deed at the time of their examination cannot per se lead to the conclusion that their veracity is doubtful. For the foregoing reasons, we accept both the appeals bearing No.950/90 and 951/90, set aside the impugned judgment of the High Court and dismiss the suit of the plaintiffs/respondents in appeal No.950 in toto. We also set aside the impugned judgment of the High Court in appeal No. 951/90 and by accepting the writ petition filed by the appellants, set aside the judgment of the Additional District Judge and restore that of the Rent Controller dated 31.1.1981. However, the learned counsel for the appellants has voluntarily allowed one year's time to the respondents for vacating the suit house. Accordingly, the respondents are directed to vacate the suit house within one year and continue payment of Rs. 80/- per month. They shall vacate the -house voluntarily within the stipulated period. There is no order as to costs. (MBC) (Approved for reporting) Appeals accepted.

PLJ 1993 SC 115 [Appellate Jurisdiction] PLJ 1993 SC 115 [Appellate Jurisdiction] Present: Dr. nasim hasan shah, ACJ, A.S. sai.am and saleem akhtar, JJ BASHIR AHMAD-Appellant versus MUHAMMAD YOUSAF, DECEASED, REPRESENTED BY MUHAMMAD SHAFIQUE-Respondent Civil Appeal No. 891/L of 1990, dismissed on 8.11.1992 [From judgment and decree, dated 17.4.1988, passed by Lahore High Court, in Civil Revision (number not given). (i) Concurrent Finding— —Specific performance of agreement to sell-Suit for-Suit decreed and decree maintained upto High Court-Challenge to~Whether there was a concluded agreement between parties-Question of-Unless there is a concluded contract between parties, no specific performance can be granted—There is no written agreement for sale of house in this case-Receipt executed by appellant cannot be termed as an agreement of sale-Oral agreement has been proved by statements of witnesses-Conduct of appellant in delivering title documents and duly signed application form for obtaining income tax clearance certificate, is important factor to decide this issue-Again when a notice for specific performance was sent, appellant remained content with only refunding Rs. 500/- to respondent-Held: In any case, all three courts have given a concurrent finding that there was an oral agreement, which cannot be disturbed. [Pp.ll7&118]A,B&C 1 (ii) Specific Performance- —Oral agreement to sell house-Specific performance of~Suit for-Suit decreed and decree maintained upto High Court-Challenge to-Whether oral agreement cannot be specifically performed-Oucstion of~Object of Section 4 of Specific Relief Act is to exclude agreements which are not enforceable by law—Under Section 2(b) contract is defined as an agreement or contract made between competent parties with their consent for lawful consideration and lawful object-Contract can be in writing as well as oral-Legislature intends that there should be a concluded valid contract—Held: Oral agreement is valid and enforceable like a written agreement provided it fulfils all requirements of a valid contract-Appeal dismissed. [P.118JD PLJ 1981 Karachi 244 and AIR 1938 Cal. 136 rel. Mr. S.M. Jdrccs, Advocate, Supreme Court, and Sh. MasoodAkhtar, AOR for Appellant. Ch. Mnzamnial KJwn, Advocate, Supreme Court and Rao Muhammad Yousaf, AOR for Respondent. Date of hearing: 8.11.1992. judgment Saleem Akhtar, J.--The appellant with the leave of the Court has challenged the judgment passed by the learned Judge in Chamber of the Lahore High Court Lahore in appeal whereby the suit for specific performance of contract in respect of immovable property was decreed against the appellant and has been maintained throughout. Muhammad Yousaf predecessor in interest of the respondent filed a suit against the appellant for specific performance of agreement entered into on 2.3.1968 by which the appellant had agreed to sell the house in Daska, District Sialkot for a consideration of rupees six thousand. It was alleged that on conclusion of the agreement rupees five hundred were paid to the appellant as earnest money for which a receipt was executed by him. The appellant handed over the title deed of the disputed house and also a form duly signed by him for submission to the Income Tax Authorities for issuance of a 'no objection certificate'. However, after expiry of 15 days the respondent came to know that the appellant was resiling from the agreement and was intending to sell the house to some other person. The respondent served a notice demanding registration of sale deed but jn reply the appellant asked for the copy of the receipt which was sent to him. The appellant sent a registered letter enclosing a draft of Rs. 500/-. The respondent claimed that there was concluded contract between the parties and he was ready and willing to perform his part of the agreement. In the written statement the appellant denied to have entered in any concluded contract. He, however, stated that there were negotiations between the parties for sale of the house but as the respondent did not accept the terms and conditions, the contract did not'conclude. As regards the payment of rupees five hundred, it was stated that they were kept as a trust money which would have been adjusted in the sale consideration on conclusion of the agreement. As the sale agreement had not concluded the same was refunded. The learned Civil Judge held that the appellant had entered into a concluded contract for sale of the house for Rs. 6,0007- and Rs. 500/- were deposited with him as earnest money. The suit was accordingly decreed. The appeal filed against the judgment and decree was dismissed by the learned Additional District Judge. The revision application before the High Court was also dismissed by the impugned judgment. Leave was granted to consider the contention of the learned counsel for the appellant that vague recital in the receipt could not form basis of a finding that an agreement of sale had been entered into by the parties. We have heard the learned counsel for the parties who have taken us through the entire evidence. The learned counsel for the appellant contended that there was no concluded contract between the parties as the receipt did not mention the terms and conditions on which the house was to be conveyed. It does not specify the sale consideration and the property sought to be purchased by the respondent. The learned counsel for the respondent contended that the parties had entered into an oral agreement and the receipt was merely a document to show that the earnest money had been paid in pursuance of the said agreement.in the wake of this controversy between the parties the first question to be determined is whether there was a concluded agreement between the parties. The burden was upon the respondent. Unless there is a concluded contract between the parties, no specific performance can be granted. The respondent's counsel relied upon the oral evidence of the parties, the receipt, notice and the conduct of the appellant in delivering the title documents for which no plausible explanation was offered. It is correct that there is no written agreement between the parties for sale of the house. The receipt executed by the appellant cannot be termed as an agreement for sale. It merely shows that a sum of Rs. 500/- was paid by the respondent as an earnest money in respect of house situated on Sambrial Road, Ibrahim Wala, District Sialkot. Therefore, this document can only be a corroborative piece of evidence to show that this amount was paid in pursuance of an oral agreement. The oral agreement has been proved by the statements of the respondent and PW3 Muhammad Sharif who was present at the time the appellant had agreed to sell the house, received Rs. 500/-, executed the receipt and delivered the title documents to the respondent. He in clear terms had stated that the sale consideration was settled at Rs. fi,000/-. He has supported the statement of the respondent and there is nothing on record to show that he was an interested witness or had made any false statement. Besides this there is ample evidence to prove the oral agreement. The conduct of the appellant is an important factor in deciding this issue. Admittedly, he had delivered the title documents and duly signed application form for obtaining income tax clearance certificate. In the written statement he had merely denied and it was in evidence (hat he came out with the explanation that he had delivered these document'- to the respondent for delivering to his father in whose favour he wanted to transfer the house due to dom -lie dispute. He does not state that the respondent was hi-, family friend or clo"-'y related to him and for that reason he had sought his help in his domestic dispute. The explanation offered is not only belated but completely false and frivolous. It is a normal practice that such documents are usually delivered to the purchaser after a concluded agreement. He does not say that these documents were delivered to the respondent so that it may be ascertained that the appellant had a clear title to sell the property. Again when a notice was sent to the appellant calling upon him to specifically perform the agreement he did not come out with all these facts, he remained content with only refunding the amount to him. In any case all the three Courts have given a concurrent finding of fact that there was an oral agreement by which the appellant had agreed to sell the house to the respondent. The same cannot be disturbed at this stage and particularly on the state of record and evidence produced by the parties. The question arises whether an oral agreement can be specifically performed. Section 4 of the Specific Relief Act provides that except where it is otherwise expressly enacted nothing in the Act shall be deemed to give any right to relief in respect of any agreement which is not a contract. The object of this provision is to exclude agreements which are not enforceable by law. Section 2 (b) of the Contract Act defines contract 'as an agreement enforceable by law. An agreement or contract made between the competent parties with their consent for lawful consideration and lawful object is binding on the parties. The legislature thus intends that there should be a concluded valid contract. The contract can be in writing as well as oral. Oral agreement is valid and enforceable as a written agreement provided it fulfils all the requirements of a valid contract. Reference can be made to All Muhammad Ktiati vs. Riaziiddin fQicra PLJ 1981 Karachi 244 and Kumar Gokul Chandra Law vs. Haji Muhamad Din AIR 1938 Cal. 136. There is no bar in law that only those contracts can be specifically enforced which are in writing. An oral agreement which is valid in law, is enforceable and specific performance of such agreement can be granted. The oral agreement as spelt out from the evidence on the record proves the object of the agreement, the consideration and that there was consensus ad idem. The appeal is dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 118 PLJ 1993 SC 118 [Appellate Jurisdiction] Present: abdul qadffr chaudhry, saiduztaman siddiqui and wali MUIIAMMAD Kl IAN, JJ Mina MOOR HUSSAIN-Appellant versus FAROOQ ZAMAN and two others-Respondents Criminal Appeal No. 20 of 1984, dismissed on 13.12.1992 (approved for reporting on 21.12.1992) [On appeal from judgment/order dated 24.11.1982, of Lahore High Court, Rawalpindi Bench, passed in Crl. Revision No. 1051 of 1980] Criminal Procedure Code, 1898 (V of 1898)- —S. 439--Murder--Offence of~Acquittal of accused-Challenge to~It is established principle of law that consideration of factual aspect of case is exclusive domain of trial court and appellate court-Revisional courts have limited jurisdiction of considering illegalities or material irregularities allegedly committed by lower forums—No appeal was filed by State and High Court, even in case of acceptance of revision under Section 439 of Cr.P.C. could order retrial, but could not convert order of acquittal into one of conviction-High Court being not convinced of any illegality or material irregularity, declined to exercise its revisional jurisdiction in reversing judgment of trial court based on sound reasons so far as factual aspect of case was concerned—Held: There is no legal error in judgments of lower forums—Appeal dismissed. [Pp.l22&124]A&B PLJ 1985 SC 74 and 1992 SCMR %/•<?/. Raja Muhammad Anwar, Senior Advocate, Supreme Court, and Qazi Kfialid, AOR for Appellant. Raja M. Akram, Senior Advocate, Supreme Court, and Mr. Ejaz M. Khan, AOR for Respondents 1 and 2. Nemo for State. Date of hearing: 27.10.1992. JUDGMFNT Wali Muhammad Khan, J.—Mir/a Noor Hussain, complainant, appellant herein, calls in question the judgment dated 24.11.1982 whereby the Lahore High Court, Rawalpindi Bench, dismissed his Criminal Revision No. 1051/80 challenging the acquittal of the accused/respondents Farooq Zaman and Zulfiqar AH alias Khaliq from the murder charge of his brother Gul Hassan deceased. The leave granting order is as follows:- "Raja Muhammad Anwar, learned counsel appearing in support of the petition for leave to appeal from the judgment of High Court submits that the Courts below have erred in treating the eye-witnesses as interested persons, ignoring the fact that none of them had any enmity whatsoever, against any of the accused persons. Learned counsel, however, piessed the case against Farooq Zaman respondent only, on the basis of ocular evidence as corroborated by circumstantial evidence of the injuries having been noticed on his person. In this behalf learned counsel submitted that the accused had absconded after the incident and this conduct was a further confirmatory evidence showing that he avoided arrest till the injuries received by him in the incident in this case were completely healed up. Learned counsel also referred to the medical evidence as to the age, location and nature of the injuries on the person of this accused in support of the pica that the injuries were caused by a brick-bat at the time of the incident in the case and the prosecution case as disclosed at the earliest stage in the FIR stands proved beyond any reasonable doubt. After hearing the learned counsel in the light of the record before us, we feel that the question whether the acquittal of Farooq Zaman respondent is based on correct principle of law governing criminal justice deserves consideration. We, therefore, grant leave to appeal so far as Farooq Zaman respondent is concerned, and allow the petition to that extent only. The petition is, however, dismissed as against Zulftqar Ali respondent." Thc'facts of the case in nut shell are that a case under Section 307/34 PPC had earlier been registered against Farooq Zaman respondent and one Muhammad Shafique alias Shiqu for injuring Abdul Ghani PW which was pending trial and was being looked after by Gul Hassan deceased, he being the partner of Abdul Ghani complainant in that case. On the preceding day of the occurrence, Farooq Zaman and Zulfiqar Ali respondents alongwith Qamar Zaman and Muhammad Fa/il, the acquitted accused, approached the complainant/appellant to persuade Abdul Ghani PW for a compromise who directed them to see him the next morning in his shop. Accordingly, the appellant conveyed the message of compromise to the deceased and Abdul Ghani PW but they did not agree, whereupon Farooq Zaman accused/respondent threatened Gul Hassan deceased with dire consequences. On 2.11.1974 at about 6.15 p.m. Abdul Ghani PW and Gul Hassan deceased were present in their shop when all the four accused armed with revolvers came there and Qamar Zaman shouted to the deceased to come out and that he will not be spared. Farooq Zaman respondent fired at him hitting him on the left shoulder blade with which he fell down. Altaf Hussain PW-10 picked up a brick-bat and pelted the same at Farooq Zaman hitting him on his head. Muhammad Faxil accused, since discharged, fired at Altaf Hussain PW but missed him. Abdul Ghani and Muhammad Ashraf PWs entreated the accused party not to kill them upon which Zulfiqar Ali respondent-2 fired at Abdul Ghani while Qamar Zaman, the acquitted accused, fired at Muhammad Ashraf but they escaped unhurt. Muhammad Ramzan PW also witnessed the occurrence. The occurrence was reported to Muhammad Hussain ASI PW-14 by Altaf Hussain PW-10, brother of the deceased and eye-witness of the occurrence, which was recorded vide F.I.R. Ex.PJ. He proceeded to the Civil Dispensary Manclra, prepared the injury sheet Ex.PK and the inquest report Ex.PL and sent the dead body to the mortuary for postmortem examination. On the following day he visited the spot, took into possession crime empties of 38 bore and sealed them into a parcel vide memo Ex.PF. He also took into possession three crime empties of 32 bore and made them into a parcel through memo Ex.PG. The accused were not available and therefore, warrants of arrest under section 204 Cr.P.C were obtained from the Ilaqa Magistrate against them and proceedings under section 87- 88 Cr.P.C. were also initiated against the accused. Muhammad Fazil accused was found innocent by the investigating agency and, as such, he was discharged under section 169 Cr.P.C. Qamar Zaman accused was murdered before the commencement of the trial. Consequently, complete challan against Farooq Zaman and Zulfiqar Ali respondents was submitted to the Ilaqa Magistrate, who, in his turn, sent up the aforementioned two respondents for trial before the Court of sessions. The learned trial Court, after framing of the necessary charge sheet, recording the prosecution evidence, the statements of the accused under section 342 Cr.P.C and on the appraisal thereof. came to the conclusion that the case against the respondents was not free from doubt and acquitted them vide his judgment dated 30-4-1978. It appears that the State did not file appeal against it and the petitioner filed revision petition before the High Court which too, was dismissed vide the impugned order. Hence the instant appeal through leave of the Court. We have heard Raja Muhammad Anwar, Senior Advocate, for the appellant; Raja Muhammad Akram, Senior Advocate, for the respondents; and have perused the record of the case with their assistance.The learned counsel appearing for the petitioner before the High Court did not press his revision petition against Zulfiqar Ali respondent No.2, Qamar Zaman and Muhammad Fazil and made his submissions only with regard to the involvement of Farooq Zaman in the instant tragedy. Even according to the leave granting order, leave has been refused against Zulfiqar Ali respondent No.2. We are, therefore, concerned only with the implication of Farooq Zaman respondent No.l for causing the death of Gul Hassan deceased. The reasons advanced by the learned trial Court for the acquittal of the accused are that the prosecution witnesses were not only the close relation of the deceased but were also inimical to the accused and fell in the category of the interested, witnesses and that without independent corroboration no reliance can be placed on their depositions for convicting the respondents on a murder charge; that the occurrence took place in a bazaar where many persons were present but no independent witness has come forward to support the prosecution case; that there was conflict between the medical evidence and the eye-witnesses' account, inasmuch as, in the F.I.R. only one effective shot was alleged to have hit the deceased on his left shoulder whereas the postmortem report disclosed one more injury on his left fore-arm; that there was no corroboration of the ocular account of the occurrence furnished by the PWs because no blood was found on the spot nor any mark of bullet or pellet was noticed at the adjoining walls of the venue of occurrence and the empties recoveredfrom the spot were neither produced nor exhibited in Court; that in spite of firing at the PWs from close range they escaped unhurt; that the possibility of the occurrence having taken place after sunset and identification of the accused doubtful could not be-excluded; that the place of occurrence is close to the police station but in spite of large number of shots none from the police could arrive at the spot; and that the motive advanced by the prosecution against Gul Hassan deceased had not been satisfactorily established. The injury on the person of Farooq Zaman was not considered against him, because according to Altaf Hussain PW one brick-bat had been thrown at him but the medical opinion showed two healed wounds on his person and the duration thereof could possibly be some time before the occurrence. The abscondence of the accused was considered a weak piece of corroborative evidence. The High Court too could not be persuaded to exercise its revisional jurisdiction in upsetting the judgment of the trial Court in view of the aforementioned reasons. The learned counsel for the appellant emphatically argued that the case of Farooq Zaman could be distinguished from the case of the other acquitted accused and by sifting the grain from the chaff, the trial court was expected to convict him for the murder of the deceased Gul Hassan. According to him, he was attributed effective role of firing with pistol at the deceased which fact was corroborated by the recoveries of empties of pistol from the spot and by medical evidence showing injury on the person of the deceased, coupled with the injuries sustained by respondent Ko.l with the brick­bat hurled at him by Altaf hussain PW-10 and his abscondence after the occurrence. We have anxiously considered the arguments of the learned counsel for the parties. There is no cavil with the proposition that the trial Court could, on the appraisal of the evidence produced before it, sift the grain from the chaff and acquit those persons involved in the occurrence whose implication was not free from doubt and convict those against whom sufficient direct evidence corroborated by circumstantial evidence was available. But it is equally established principle of law by now that the consideration of factual aspect of the case is the exclusive domain of the trial Court and the appellate Court. The revisional Courts have limited jurisdiction of considering illegalities or material irregularities allegedly committed by the lower forums. As stated earlier, no appeal had been filed by the State and the learned High Court was seized of the matter as a revisional Court under section 439 Cr.P.C. under which even in case of acceptance, it could order retrial and could not convert the order of acquittal into one of conviction. The High Court being not convinced of any illegality or material irregularity declined to exercise its revisional jurisdiction in reversing Hie judgment of the trial Court based on sound reasons so far as the factual aspect of the case was concerned. In the case of appeal against acquittal too, certain guidlines have been formulated by this Court which have to be kept in view before setting at naught the acquittal order. In the case of Ghulam Sikandar vs. Mamaraz Khan (P.L.J. 1985 Supreme Court 74) on the consideration of the earlier relevant case law on the point, the following guidelines were enumerated: - "In an appea! agamst acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of the Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the reappraisement of evidence which then is undertaken so as to see that benefit of every reasonable «doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence. (2) The acquittal will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) mis-read Mich evidence; (c) received such evidence illegally. (3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by. the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above arid for no other reason. (4) The Court would not interfere with acquittal merely because on re­ appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous." In a latest case of Yar Muhammad and 3 others vs. the State (1992 S.C.M.R. 96) this Court observed as under:- ' "In view of these discrepancies the learned trial Court acquitted the appellants. The High Court was hearing an acquittal appeal and the principles for setting aside an order of acquittal are now well settled. Unless the judgment of the trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdiction under section 417, Cr.P.C. In exercising this jurisdiction the High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice." In view of the principles enunciated in the above quoted rulings, the judgment of the trial Court is supported by sound reasons and this Court cannot substitute its own findings in place thereof unless it also comes to the conclusion that the findings of the trial Court as well as that of the High Court are "artificial, shocking, ridiculous, based on misreading of evidence and leading to miscarriage of justice." We have scanned the evidence and could not find any legal error in the judgments of the lower forums. Resultantly, there is no merit in the instant appeal and the same is accordingly dismissed (MBC) (Aproved for reporting) Appeal dismissed-

PLJ 1993 SC 124 PLJ 1993 SC 124 [Appellate Jurisdiction] Present: DR. NASIM HASAN SHAH, AJMAL MIAN AND SAJJAH ALI SHAH, JJ. ARZ MUHAMMAD UMRANI Appellant Versus ATT A MUHAMMAD and another Respondents Civil Appeal No.33/Q of 1991, dismissed on 13.1.1993 [On appeal from judgment dated '13.11.1989, of High Court of Baluchistan, in C.P.No.201 of 1989] Pakistan Penal Code, 1860 (XLV of 1860 S.77 read with Criminal Procedure Code, 1898, Section 197 — Judicial Officer — Remarks against — Expungement of — Prayer for — Undoubtedly, order to place highly adverse observations of court, on confidential record of appellant, can result in considerable harm to him in respect of his future service career for an act done by him while performing his duties as a Judge, and principle underlying Section 77 PPC and Section 197 Cr.P.C. is that no liability is incurred by an officer for doing an act in his judicial capacity — This principle is not applicable in this case — High Court found that order impugned before it was passed by appellant relying on provisions of law which were no more on statute book — Moreover pendency of some matter before competent forum within knowledge of appellant, raised apprehension in mind of court that he was acting malafide — Held: No exception can be taken to observations of High Court that appellant was not a fit person to be conferred with judicial or quasi-judicial powers — Appeal dismissed, [Pp 128 & 129] A & B Mr.S.A.M.Quadri, AOR for Appellant. Raja Muhammad Afsar Khan, Advocate General, Baluchistan for Respondent No.2. Date of hearing: 13.1.1993. JUDGMENT Nasim Hasan Shah,J.- This appeal of Mr.Arz Muhammad Umrani, Assistant Political Agent, Dera Bugti, by leave of this Court is directed against the judgment of the High Court of Baluchistan seeking expungement of certain remarks passed against him while disposing of C.P.No.201/1989 on 13.11.1989. The facts necessary for purposes of this appeal are that one Ghabroo son of Lakha Khan on 16th January 1989 lodged a complaint before Assistant Political Agent, Dera Bugti alleging that one Atta Mohammad son of Karam had enticed away his wife Mst. Khair Bibi and was committing zina with her. The complaint was referred to Naib Tehsildar Singsalah for inquiry who submitted challan under Sections 497, 498 PPC on 22.7.1989. Learned Assistant Political Agent, Dera Bugti, appellant herein, exercising powers under Sections 4 and 5 of Ordinance II of 1968 constituted a Tribunal on 23rd July, 1988 and referred the matter to it for determining the question of guilt or innocence of the appellant pertaining to offences covered by Sections 497/498 PPC. Evidence was recorded by the Tribunal; thereafter report was submitted by the Members on 2nd August, 1989 unanimously finding Atta Muhammad, aforementioned, guilty of the aforesaid offences. The Assistant Political Agent, Dera Bugti (appellant herein) accepted recommendations of the Tribunal and vide judgment dated 10th August 1989 holding him guilty for the offences aforesaid sentenced him to undergo rigorous imprisonment for 5 years and fine of Rs. 15.000/- under Section 497 PPC and rigorous imprisonment for 3 years and,,fine of Rs.10,000/- regarding offence under section 498 PPC. Feeling aggrieved by the said conviction and sentence, Atta Muhammad filed a Constitutional Petition (C.P.No.201 of 1989) in the High Court of Baluchistan, wherein he contended that Sections 497/498 PPC stood repealed by Section 19 of "The Offence of Zina (Enforcement of Hudood) Ordinance, 1979; therefore, all the proceedings drawn up in the matter by Assistant Political Agent or Tribunal were completely without jurisdiction and conducted without lawful authority and were, therefore, of no legal effect. The High Court found force in this contention obserying that after the promulgation of "The Offence of Zina (Enforcement of Hudood) Ordinance, 1979' provisions of Sections 497/498 PPC have ceased to be on the Statute Book with effect from 10th February, 1979. The provisions of Section 19(3)(a) of the aforesaid Ordinance were reproduced whereunder Sections 497/498 PPC stood repealed This section is to the following effect: "19. Application of certain provisions of Pakistan Penal Code and amendment. - (1) Unless otherwise expressly provided in this Ordinance the provisions of Sections 34 to 38 of Chapter II, Sections 63 to ~2 of Chapter III and Chapter V and V-A of the Pakistan Penal Code shall apply mutatis mutandis in respect of offences under this Ordinance. (2) ............................................................................ (3) ............................................................................ (a) Section 366, Section 372, Section 373 and 375 and Section 3~ 7 6 of Chapter XVI and Section 493, Section 497 and Section 498 of Chapter XX, shall stand repealed;" It was observed that, on repeal of offences, covered by Sections 497/498 PPC neither the proceedings drawn and recorded by the Assistant Political Agent Dera Bugti nor the Tribunal under Sections 497/498 PPC had any jurisdiction to try or convict Atta Muhammad. Hence the said proceedings were totally coram non-judice and as such nullity in the eyes of law. Accordingly, the impugned judgment passed by the appellant herein was held to be illegal, void and without lawful authority. The conviction of Atta Muhammad and the sentence awarded to him were set-aside and he was ordered to be set at liberty. The High Court furthermore, in the course of its judgment, took notice of the conduct of the appellant in disposing of the matter and commented upon it in strong terms not only made adverse remarks but also ordered them to be placed on his confidential record. The reasons given for taking this action were stated in some detail by the Court in its judgment. It was observed that "in respect of the same set of allegations a challan under Sections 10/1.6 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. has already been put up before learned Sessions Judge, Nasirabad at Dera Allah Yar to the knowledge of Assistant Political Agent, Dera Bughti as admitted by him in paras 2 and 3 of comments filed in this Court". And it was further observed— "Since case was already pending before the Court of Sessions, learned Assistant Political Agent obviously had no jurisdiction to adjudicate upon in the matter. Attempt for usurpation of jurisdiction therefore smells of mala-fide. " The learned Judge also went on to observe- "It is painful for us to note that learned Assistant Political Agent while performing judicial functions, neither knew about existence of relevant provisions of Penal Code nor verified this aspect while initiating trial or at least awarding conviction to petitioner. Surprisingly, record maintained by him is also stinking. Complaint was lodged on 16th June, 1989 whereas in green ink learned Assistant Political Agent Dera Bugti has referred the matter to Naib Tehsildar on 15-6-1989, a day earlier than the complaint itself. Challan submitted by Naib Tehsildar, Sangsalah on 22nd July, 1989 mentions on th'e top, that complaint investigated by him was of 16th July, 1989. However, in Column 7 of the challan date of the complaint is mentioned as 16th June, 1989. Such variations in judicial matters clearly cast serious doubts. Learned Presiding Officer is not merely ignorant about law but is certainty performing judicial functions in a dubious manner. It is, therefore, dangerous to assign him judicial or quasi-judicial functions which may lead to serious consequences". The above observations have, as already stated, been ordered to be placed on the confidential record of the appellant. By this appeal, the appellant seeks their expungment. Leave was granted to consider whether the principles underlying the provisions of Section 77 PPC, Section 197 Cr.P.C. and other laws affording protection to judicial officers when performing their functions as such were not attracted to the present case and also whether the appellant was not entitled to an opportunity of hearing before awarding the adverse remarks since they may result in depriving him of the assignment of judicial and quasi-judicial functions for ever. We have heard Mr. S.A.M. Qaudari in support of the appeal as also Raja Muhammad Afsar. Advocate General Baluchistan, who simply stated that the Government of Baluchistan was neither supporting the appellant nor defending the judgment of the High Court in this case. In other words, it was taking a neutral position in the matter. Section 77 of the P.P.C provides- "Act of Judge when acting judicially. - Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law."Section 197 Cr.P.C lays down - "Prosecution of Judges and public servants.- 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 Federal 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 with the previous sanction - (a) in the case of a person pmployed in connection with the affairs of the Federation, of the President; and (b) in the case a person employed in connection with the affairs of a Province, of the Governor of that Province". According to these provisions, the judicial officers enjoy immunity for performance of their judicial acts. Undoubtedly, the order to place the highly adverse observations of the Court on the confidential record of the appellant, whereby he has been found unfit for exercise of judicial and quasi-judicial functions, can result in considerable harm to him in respect of his future service career, for an act done by him while performing his duties as a Judge and the principle underlying Section 77 PPC and Section 197 Cr.P.C. is that no liability is incurred by an officer for doing an act in his judicial capacity. But this principle is not attracted in the circumstances of the present case. Here what is being impugned is also a judicial act, performed by the High Court. The position is that an order passed by the appellant in exercise of judicial/quasijudicial functions was being questioned before the High Court in exercise of the powers conferred on it under Article 199 of the Constitution. While examining the said order, the High Court found that the order impugned before it was passed b\ the appellant relying on provisions of law, which were no longer on the statute book but stood repealed. Moreover, the same matter was pending before another forum, indeed the competent forum, a fact which was in the knowledge of the appellant, raising an apprehension in the mind of the Court that the appellant was acting mala-fide. Taking all these circumstances into account, the learned Judges of the High Court remarked that the appellant was not a fit person who could be conferred powers to exercise judicial or quasi-judicial functions. Since these observations were related to and arose out of the order of the appellant that was being questioned before them, no exception can be taken to the observations made, not being unrelated to the examination of the order impugned before them. The question of affording an hearing to the appellant before making the complained of observations did not arise because the order of the appellant was competently impugned before the High Court and its legality and validity was being judicially examined under Article 199 of the Constitution. In such a situation, it is not necessary to hear the author of the ^rder. Needless to say that the High Court under Article 203 of the Constitution being responsible for the entire administration of justice in the Province and being charged with the responsibility of supervising all Courts subordinate to it was competent to take all appropriate measures for preventing flagrant mal-administration of justice.. The High Court taking note of the manner in which this case was dealt with by the appellant and coming to the conclusion that the inevitable result of vesting judicial powers to an officer, as ignorant of law as the appellant was, would result in mal-administration of justice could clearly make the complained of remarks as these were not unrelated to the findings recorded by the Court while ruling on the legality and validity of the impugned order, brought before it for correction. No interference, ..with the judgment of the High Court assailed before us, isl therefore, called for. This appeal, accordingly, fails and is dismissed. (MBC (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 129 PLJ 1993 SC 129 Present: DR. NASIM HASAN SHAH AND SALEEM AKHTAR, JJ NASEEM AHMAD and another —Appellants versus AIR BOTSWANA (PVT) LTD and 5 others —Respondents Civil Appeal No.218-K of 1991, accepted on 20-1-1993. [On appeal from judgment dated 20-9-1990, of High Court of Sindh, Karachi, passed in Revision CApplication No.237 of 1986] Civil Procedure Code, 1908 (V Of 1908) S.20 read with Carriage by Air Act, 1934, Article 28 — Damage to goods in air freight — Damages — Suit for.- Dismissal of suit — Whether direct revision to High Court was competent — Question of ~ Undoubtedly courts will ordinarily decline to exercise revisional jurisdiction when alternative remedy is available, but this should not be regarded as an inflexible rule to be followed rigidly — Case raised a serious question •of law whether High Court was right in holding that courts at Karachi did not have jurisdiction to entertain suit when offices of at least two defendants were located at Karachi although claim for damages and short delivery of goods pertains to carriage undertaken by airlines outside Pakistan — Held: This was a fit case justifying a departure from normal rule and an authoritative decision of High Court was necessary in light of section 20 C.P.C and Article 28 of first schedule to Carriage by Air Act, 1934 — Appeal accepted and case remanded. [Ppl30& 131]A,B&C Pti) 1970 SC 506 modified PLJ 1976 SC 159 and PLJT987 SC 636 rel. Ms. Majida Rizvi, AOR for Appellants. Nemo for Respondents. Date of hearing: 10-1-1993. JUDGEMENT Nasim Hasan Shah, J. - This appeal, by leave of this Court, is directed against the judgment of the High Court of Sindh dated 20-9-90 passed in Civil Revision Application No.237 of 1986. The relevant facts are that the appellants, who are husband and wife filed a suit for recovery of Rs.25,0007- in the Court of Civil Judge at Karachi , as loss suffered by them on account of damage to 9 packages and short delivery of three packages in_ respect of 27 packages of their house-hold effects air-freighted by them. All the six defendants in the suit are Air-lines. Several issues were framed out of which one was with regard to jurisdiction of the Court which was taken up as preliminary issue and answered affirmatively in consequences whereof suit was dismissed. Against the dismissal of suit, revision was filed in the High Court which was dismissed vide judgment dated 20-9-1990. The revision was dismissed as incompetent on the ground that against the dismissal of the suit the proper forum of appeal was District Judge and without approaching the said forum a direct revision was not competent in the High Court. In support of this view, reliance was placed upon case of Municipal Committee, • Bahawalpur vs. Shaikh Aziz Elahi (PLD 1970 S.C 506) wherein it was held that to allow a direct revision to the High Court in cases where an appeal lay to the Court of the District Judge would lead to anomalous situations in that it would entitle a person to circumvent the ordinary procedure laid down for preferring an appeal or appeals as the case may be and enable a party aggrieved from a decree or order from which an appeal lies to the District Judge to short circuit the procedure prescribed by the Gode of Civil Procedure and come direct to the High Court. However, the view taken above has to some extent been modified by this Court in subsequent judgments delivered by this Court and the view subsequently taken is that undoubtedly the Courts will ordinarily decline to exercise revisional jurisdiction wherein alternative remedy is available but this should not be regarded as an inflexible rule to be followed rigidly witho.ut exception because in special circumstances of a case, a departure from this rule could be justified. Thus, this Court in Manager, Jammu & Kashmir State Property in Pakistan & others vs. Khuda Yar & another (PLJ 1976 S. C 159) inter-alia observed- ' "As a general rule the principle to be followed in all such discretionary matters is that special and extraordinary powers ought not to be exercised in favour of an applicant who has been negligent in pursuing the normal remedies open to him. Thus where an appeal lay to some other Court and could have been filed if the applicant was diligent but he has not done so, then the High Court should not ordinarily entertain a revision even if the order or decision complained of does not amount to decree ........................ This rule is not, however, an inflexible one and it will, no doubt, depend upon the special circumstances of each case whether it will be followed or not." and recently in the case of Messrs United Bank Limited vs. Yousuf H-aji Noor Muhammad Dhadhi (PLJ 1987 S.C.636) after noticing the above-mentioned two decisions it was observed - "Learned counsel also contended, on the basis of Municipal Committee vs. Sh. Aziz Elahi (PLD 1970 S.C. 506) and S.Azizul Hassan and another vs. Malik Ghulam Muhammad (1971 SCMR 123), that no revision under Section 115 was competent if no appeal was preferred from the order which was appealable. This point, however, is concluded and determined by a judgment of this Court in Manager, Jammu & Kashmir State Property in Pakistan vs. Khuda Yar and another (PLJ 1976 S.C. 159), in which it was held that although ordinarily courts "have declined to exercise revisional jurisdiction where an alternative remedy is available, yet this is not an inflexible rule to be rigidly followed and a departure could be justifiably made if required from circumstances of the case. Having regard to .all the circumstances of this case we feel that in this case the High Court ought to have entertained the revision application and set-aside the order .impugned before it whereby the plaintiffs were non-suited for a trivial formality". In our opinion, the present was a fit case justifying a departure from the normal rule and in which the High Court should have exercised jurisdiction. The case raised a serious question of law namely whether in the circumstances of the case, the learned Judge in the High Court was right in holding that the Courts at Karachi did not have the jurisdiction to entertain the suit when the offices of at least two defendants were located in Karachi, although the claim for damages and short delivery of the goods pertains to the carriage undertaken by the airlines outside Pakistan. An authoritative decision of the High Court was necessary in the light of Section 20 C.P.C and Article 28 of the first schedule to the Carriage by Air Act, 1934. The last-mentioned Article states that an action for damages must be brought at the option of the plaintiff either before the Court having jurisdiction where the carrier is 'ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination. Four alternatives have been provided to give jurisdiction to a Court in a dispute coming under this Act. This being the first case of its kind, required consideration in depth by the High Court. Moreso for the reason that in the present case, six Air Companies were involved having their head offices in different countries. Considering that the present day air travel has become so common that a passenger expects to receive redress of his grievance at a place which is more convenient to him if a branch office is also established at a place of suing. We would, accordingly, set-aside the impugned order of the High Court dated 20-9-1990 and remand the case to it for disposing it of on merits. No costs. (MBC) (Approved for reporting Appeal accepted.

PLJ 1993 SC 132 PLJ 1993 SC 132 [Appellate Jurisdiction] Present: AJMAL MIAN AND SAJJAD ALI SHAH, JJ. MUNAWAR ALI ALIAS MUNAWAR HUSSAIN — Appellant versus THE STATE —Respondent Criminal Appeal No. 157 of 1991 , accepted on 12. 1 . 1993 [On appeal from Judgment, dated 28:11.1990, of Lahore High Court, in Cr.Appeal No.284 of 1988] Criminal Trial Murder - Offence of -- Conviction for - Challenge to -- Appellant had no motive to kill Manzoor — He was not related to co-accused whose brother Sadiq was murdered in which Manzoor was named as accused and was released on bail and had come out of Jail on date of incident' —.Medical evidence can never be used as corroboration qua accused to show that particular accused had caused those injuries — Three assailants were armed with carbines and one crime empty recovered from spot, matched with carbine recovered from co-accused, hence in absence of positive rinding of fire arm expert against appellant, reliance cannot be placed on medical evidence to prove that specific injuries attributed to appellant, were caused by him — It is not open to draw adverse inference if accused declines to make statement on oath in his defence - - Held: Prosecution has not proved case beyond doubt against appellant — Appeal accepted. [P135.136& 137.] A,B,C&D PLD 1976 SC 695, 1985 SCMR 34.PLD 1985 SC 1 1 and PLD 1987 SC 624 rel. Mian Muzqffar Ahmad, Advocate, Supreme Court, instructed by -Raja Abdul Ghafoor, Mr. S. M. Naeem, Advocate, Supreme Court for State. Date of hearing: 12-1-1993. JUDGMENT Sajjad Ali Shah, J. - Appellant Munawar Ali was put on trial alongwith Ashiq, Hidayat and Arif for offence under Section 302/34 P.P.C. in the Court of learned Additional Sessions Judge, Kasur for committing murder of Manzoor Hussain in furtherance of their common intention. Trial Court convicted all the four of them and sentenced each for life imprisonment and fine of Rs,3QOO/- or in default R,I for one year. Lahore High Court vide judgment dated 28-11-1990 dismissed appeal of Munawar and Arif giving them benefit of Section 382-B, Cr.P.C. and acquitted Hidayat and Ashiq on the ground that the case against them was doubtful, Both convicts filed Petition in this Court for leave to appeal which was refused in the case of Arif and granted in the case of Munawar on the grounds that he had no motive and there was no oorroboration of ocular testimony against him. 2. Prosecution case briefly stated is that incident took place on 7-10-1985 at 12.15 p.m. in front of shop of Muhammad Sadique vegetable seller in the bazar of Kot Mirbaz Khan in Kasur. Deceased Manzoor Hussain alias Bagger was sitting on the bench outside the shop of Muhammad Sadique, when appellant and his three co-accused named above appeared all armed with carbines. They raised lalkara that Manzoor Hussain was to he killed as revenge of murder of Muhammad Sadiq. Manzoor got up but Arif fired at his chest. Manzoor tried to run but fell down and Hidayat fired shot which hit him below right ear. Munawar fired shot which hit him on left shoulder and then Ashiq fired shot which hit him on abdomen. Lastly Munawar fired second shot which hit Manzoor on chest. Incident was witnessed by complainant Muhammad Hussain, Khushi Muhammad, Mairaj Khalid and Asghar. Manzoor died at the spot. Complainant proceeded to police station for report leaving behind other witnesses to guard the dead-body. S.I Muhammad Aslam of P.P. No.8 Kasur met complainant on ,tbe way and recorded his statement. Motive as stated is that Sadiq brother of Ashiq, Hidayat and Arif (co-accused in the trial Court) was murdered in which case Manzoor and six others were challaned but they were bailed out. On that account revenge of murder of Sadiq was taken. 3. S.I. Muhammad Aslam after recording statement of complainant sent it to the Police Station for registration of formal F.I.R. He visited place of occurrence and examined deadbody and then sent it to the hospital for postmortem examination. He recovered blood stained earth and crime bullet from the spot and got site plan prepared. He recorded statements of witnesses and took other steps in the investigation. He handed over investigation to S.H.O Abdul Shakoor of P.S. City Kasur. During investigation appellant and other co-accused were taken in custody and they with the exception of Ashiq produced their carbines and two live cartridges each. After completion of investigation challan was presented in the Court. 4. In the trial court, prosecution examined 16 witnesses in support of its case. P.W.I Jamat Ali identified deadbody in the hospital. P.W.2 Sanaullah signed recovery merqo Ex./P. A whereby clothes of deceased and Vial were handed over to I.O. P.W.3 Constable Muhammad Aslam is corpse-bearer. PW.4 HC Allahbux Head Muharrir registered formal F.I.R, and kept in custody in Malkhana sealed parcels. P.W.5 Ghulam Nabi is recovery witness of weapon and live cartridges from Hidayat vide memo Ex.PC. P.W.6 Khurshid Muhammad is recovery witness of weapon and cartridges of Arif. PW 7 Habibullah F.C. brought report of complainant to P.S. for registration of formal F.I.R and he also delivered sealed parcels at the laboratories safely. PW-8 Muhammad Ahmad Anwar is draftsman, who prepared site plans Ex.PE and PEC/1. Ocular evidence is furnished by three witnesses namely PW-9 Complainant Muhammad Hussain, PW-10 Khushi Muhammad and PW-11 Meraj Khalid. PW-12 Mehr Din attested recovery memo Ex.P.J whereby Carbine P. 11 was recovered from the house of appellant Munawar alongwith two live cartridges. PW-13 is Dr. Wahid Bakhsh Bhatti, who conducted postmortem examination. PW-14 Inspector. Abdul Shakoor and PW-15 S.I. Muhammad Aslam investigated the case. PW-16 S.H.O Haq Nawaz arrested Ashiq on 11-10-1985 on secret information by raiding the house.' Other witnesses were given up as unnecessary. Prosecution also produced reports of ballistic expert and chemical examiner. 5. Appellant and his co-accused in the trial Court denied prosecution allegations and proclaimed false implication in their statement under Section 342 Cr.P.C Arif stated that because in the murder case (of) his brother Sadiq deceased Manzoor was named as accused, relatives of deceased falsely implicated him in this case, when he was not present at the place of occurrence at the time of incident. He also stated that deceased had many enemies and there was conflict between deceased Manzoor and Sheri, who was also named as accused in the murder case of Sadiq. Hidayat and Ashiq co-accused in this case in the trial Court took same stand as their brother Arif. Appellant Munawar in his statement under Section 342 Cr.P.C. stated that he had been involved falsely in this case because deceased Manzoor had committed zina with daughter of Khushi Muhammad and on that account his (appellant's) father condemned father of deceased in the open meeting and that was reason for complainant to falsely implicate appellant. Secondly appellant stated that he was not related to the other coaccused brothers and therefore had no motive to kill deceased. Thirdly appellant stated that he did not reside in Kasur and did not participate in the incident and produced defence witness Raja Muhammad Nawaz Khan. 6. Trial Court believed ocular evidence by holding that PW-9 Complainant Muhammad Hussain had seen the incident as he had given detailed account of incident in F.I.R. which was lodged without delay. Complainant was corroborated by two other eye witnesses PW-10 Khushi Muhammad and PW-11 Meraj Khalid, who are not related to complainant. This evidence was supported by medical evidence and motive. Additionally reliance was placed on evidence of recovery of weapons. Trial Court convicted accused all pot on trial and sentenced them as stated above. 7. After evaluation of evidence in appeal, High Court held that Complainant Muhammad Hussain, fattier of deceased was present at the spot and saw the incident. He was Qanungo/Girdawar and explained his presence on the day of incident at the spot as on that day he had taken one day's leave to go to Lahdre where his daughter was admitted in hospital. His evidence was further corroborated by PW-10 Khushi Muhammad and PW-11 Meraj Khalid, who are not related to the complainant and their presence at the spot is well accounted for. Both these witnesses demonstrated moral' courage by giving evidence when all other persons who were present at the spot at the time of incident ran away and even shops were closed. PW-14 S.H.O. Abdul Shakoor admitted in cross examination that persons from the locality were not prepared to become witnesses. 8. High Court was also deeply impressed by the evidence of motive in which deceased Manzoor who was an accused in connection with murder of Sadiq brother of Hidayat, Arif and Ashiq was released on bail and came out from jail on the day of incident. This fact as such was not denied by. accused persons in the trial Court that deceased Manzpor was accused in the case of murder of Sadiq and had come out from jail on the day of incident. High Court had to look for corroboration for the reason that ocular evidence was in conflict with medical evidence in respect of injuries allegedly caused to the deceased by Hidayat and Ashiq. According to prosecution case Hidayat fired shot which hit deceased below his right ear. Postmortem report showed that injury No.6 on the face was on the left side. Pellets recovered from the dead-body were not linked with carbine recovered from Hidayat. Crime empty recovered from the spot did not match with carbine of Hidayat. Similarly case of the prosecution is that Ashiq fired shot which hit deceased on his abdomen. Postmortem report did not show any injury on abdomen and four pellets recovered from abdomen had entered through entry wounds at other places. Secondly no weapon was recovered from Ashiq. In such circumstances High Court gave benefit of doubt to both Hidayat and Ashiq and acquitted them. 9. High Court dismissed appeal of Arif and maintained his conviction and sentence for the reason that prosecution case stood proved against him on the basis of ocular evidence, medical evidence, motive and circumstantial evidence of recovery of carbine from him with positive report of ballistic expert that crime empty recovered from the spot matched with crime weapon recovered from him. This Court at petition stage refused to grant leave in the case of Arif and dismissed his petition. 10.lt is urged before us that High Court also dismissed appeal of Munawar Ali although his case is at par with Hidayat and Ashiq who .have been acquitted by the High Court, In this context it is submitted that only one crime empty was recovered from the spot which according to the report of ballistic expert matched with carbine recovered from Arif. We have examined evidence on the record against appellant Munawar in the light of contention of the counsel mentioned above. Reasons assigned by the High Court, dismissing appeal of appellant Munawar are that as alleged by the prosecution he had fired two shots as claimed by the complainant,who had no particular reason to falsely implicate him. It is, therefore, observed by the High Court that in respect of injuries to the deceased attributed to the appellant, there is corroboration in medical evidence. We do not feel inclined to agree with the reasons assigned by the High Court. In our view appellant Munawar had no motive to kill Manzoor as the remaining three co-accused put on trial as their brother Sadiq was murdered in which case Manzooor was named as accused and was released on bail and had come out from jail on the date of incident. Appellant Munawar is not related to Hidayat, Ashiq and Arif. 11. Medical evidence is corroboration to show that injuries were caused in a particular manner with particular weapon and even it can supply corroboration to the fact as to how many assailants there .were and whether number of injuries is commensurate with number of assailants or not, but medical evidence can never be used as corroboration qua accused to show that particular accused has caused these injuries. Question of medical evidence as corroboration came up for consideration before this Court in the case of Machia and others Vs. State (P.L.D. 1976 SC 695) and it was observed that medical evidence by itself and without more cannot throw any light on the identity of the assailants, but in case of inimical evidence, it is this aspect of the ocular evidence Which requires corroboration, because danger in relying on ocular evidence in such cases is that the witnesses may falsely implicate their enemies. At the highest, therefore, the case that medical evidence is consistent with the ocular evidence, may furnish some limited corroboration of the ocular evidence if it can lead to the inference that the eye-witnesses have spoken the truth. In the case of Shamsherwan Vs. State (1985 SCMR. 34) it was held that medical evidence is merely corroborative evidence but conviction cannot be recorded merely on basis of presence of injuries on. dead body without there being any evidence on record that accused had caused the same. 12. Legal position is settled that in a criminal trial, when an eyerwitness compromises his integrity and makes a false statement by way of addition or improvement in his deposition and on that account one or more accused in that case are acquitted, then in such circumstances great care and caution is to be exercised in dealing with evidence of such witness for the purpose of evaluation in respect of conviction of other accused and is to be accepted only when it is supported by independent corroboration. In this context reference can be made to the case of Ghularn Sikandar and others Vs. Mamraz Khan & others (PLD 1985 SC 11) in which this Court has held in unequivocal terms that where it is found that witness has falsely implicated one accused, ordinarily he would not be relied upon with regard to the other co-accused in the same transaction unless his testimony is corroborated by very strong and independent circumstances, regarding each one of the other accused. In the instant case three assailants were armed with carbines and one crime empty recovered from the spot matched with carbine recovered from Arif, hence in the absence of positive finding of fire arm expert against appellant reliance cannot be placed on medical evidence to prove that specific injuries attributed to Munawar were caused by him. In support reference can be made to Sarwar and others Vs.. State (P.L.D 1987 S.C. 624). 13. Lastly High Court has observed that appellant did not pick up courage to make statement on oath under Section 340(2) Cr.P.C. Be that as it may, it is not open to draw adverse inference if accused declines to make statement in his defence on oath. Appellant Munawar produced defence witness Raja Muhammad Nawaz, who stated that appellant was working with him in Chakwal and was produced by him before police after the incident. But High Court held that his evidence did not inspire confidence and it was not believable that appellant would go as far as Chakwai to do labour work for a petty amount of Rs.600/- p.m. when he could easily earn much more money by labouring in city. In this context we would like to say that it is the duty of the •prosecution to prove case against accused beyond shadow of reasonable doubt and .prosecution cannot take benefit from weakness of defence plea. In this case, we are of the view that against appellant prosecution has not proved case beyond doubt hence we give him benefit of doubt and set-aside his conviction and sentence. Appeal is allowed and in the result appellant is acquitted. He may be released at once, if not wanted in any other case. (MBC) (Approved for reporting) ' Appeal accepted.

PLJ 1993 SC 137 PLJ 1993 SC 137 [Appellate Jurisdiction] Present: DR.NASIM HASAN SHAH AND SALEEM AKHTAR, JJ KHURSHID AHMAD NAZ FARIDI — Appellant Versus BASHIR AHMAD and 3 others — Respondents Civil Appeal No. 1120 of 1990, decided on 13.1.1993. [Against judgment of Lahore High Court, Multan Bench, dated 20.9.1989, passed in W.P.No.l762x>f 1989.] (i) Costs Inspector of F.I. A. passing order restraining respondent No.l from constructing building on plots in dispute — Quashment of order by High Court — Challenge to -- Whether order for payment of costs by respondent No.4 and appellant personally, was not justified — Question of — Object of granting such costs, is (1) to compensate aggrieved party for being put to unnecessary litigation and harassment, and (2) .to penalise a party who may have initiated any action or passed order arbitrarily, mahifide or with ulterior motive — As order granting costs is discretionary, it should be based on well recognized principles of justice and equity and should not be fanciful, arbitrary, wrumsicalor capricious — Held: As respondent No.4 had no jurisdiction, authority or power to pass prohibitory order restraining respondent No.l from constructing bujlding, costs ordered to be paid by him and appellant personally, cannot be termed as whimsical, arbitrary or illegal. [P 140& 141 ]B &.C (ii) Quashment Inspector of F.I.A. passing order restraining respondent No. 1 from constructing building on plots in dispute — Quashment of order by High Court — Challenge to — Respondent No, I had filed Constitution petition challenging validity of order passed by ' respondent No.4 whereby he restrained respondent No.l from constructing a building on plots purchased by him in open auction from Settlement Department — Held: Relief with regard to quashment of impugned order/notice and declaring it to be without iawfui authority, was just and proper because there is no provision empowering Inspector of F.I.A. to issue notice restraining respondent No.l from constructing any building on plots. [P 139 & 140 ]A Mr. A. W. Butt, Advocate, Supreme Court, and Sh. Salahuddin AOR (absent) for Appellant. Respondent No. I in person S.Inayat Hussain, AOR for Respondents 2 to 4 Date of hearing: 13.1.1993 JUDGMENT Saleem Akhtar,J. - This appeal by leave of the Court challenges the judgment passed by the High Court by which the petition filed by respondent No. 1 was allowed and the appellant and the Inspector, F.I.A, respondent No.4 in this appeal were directed to pay to respondent No. 1 costs of'Rs. 1000;- each from their own pocket. 2, Respondent No.l had purchased plots No.650 and 651 in an auction and necessary title documents were issued by th'e Settlement Department. The sale was challenged, but it was maintained by the High Court as well as by the Supreme Court, which had upheld the order of the High Court. The appellant filed an application dated 25.3.1989 addressed to the Director, F.I.A., alleging that these plots have been obtained by respondent No.l by misrepresentation, fraud and forgery. Respondent No.4 issued a notice/order dated 2.7.1^89 directing respondent No.l not to construct any buiidi-ng on plots No.650 and 651 till the disposal of the application filed by the appellant. Respondent No. 1 filed a Constitution Petition in the High Court challenging the order, which was allowed by the impugned judgment. The learned Judge after considering the documents produced in Court while granting the relief observed as follows: - "From the copies of the various orders referred to in the writ petition and attached with the writ petition, it is obvious that the petitioner had purchased plots No.650-651 from the Settlement Department in open auction and after the payment of necessary charges he acquired their title from them (Settlement Department). Later a dispute afose between him and the Town Committee Kot Mithan Sharif as the latter was claiming some right with regard to plot No.652 and for the resolution of their '•nntroversy they took recourse to the Settlement Authorities which, after protracted proceedings, held the petitioner as lawful transferee of plots No.650 and 651 and by the process of demarcation he took possession thereof. When the Town Committee lost its cause before the Settlement Authorities, (it) invoked writ jurisdiction of the superior courts but there too it tailed up to the level of Supreme Court. Now it, through respondent No.4, who is one of its petty employees, has thought proper to re-agitate the matter before respondents No.l to 3, the officers of F.I. A, and respondent No.3 surprisingly enough, assuming the role of a civil court, issued'the impugned order in the form of a notice, restraining the petitioner as also collusively the Chairman of Town Committee, Kot Mithan Sharif, who appears to be still pulling wires behind the curtain from raising any construction on the disputed plot. Whatever respondent No.3 has done either of his own accord, or at the instance of other respondent, is altogether against law and without lawful authority. So far as plots No.650-651, which belong to the petitioner and stand duly demarcated, are concerned the question of their title and possession stands settled once for all at the highest judicial level and neither the respondents nor any one else including the Chairman, Town Committee, Kot Mithan Sharif, has any authority or justification whatsoever to reagitate and reopen this matter in any manner and before any authority. In view of the above, the writ petition is accepted and it is declared that 'order/notice dated 2.7.1989 issued by respondent No.3, is illegal and without lawful authority and respondents No.l to 3 are restrained from taking proceedings against the petitioner on the application of respondent No.4. Respondent No.3 who had issued the impugned notice and respondent No.4 shall pay to the petitioner costs of Rs. 1000/- each from their own pocket." 3. Leave was granted to consider whether the High Court could competently give the following direction to the appellant and respondents No.2, 3", and 4: "...respondents No.l to 3 are restrained from taking proceedings against the petitioner on the application of respondent No.4. Respondent No.3, who had issued the impugned notice and respondent No.4, shall pay to the petitioner costs of Rs. 1000/- each from their own pocket." 4. The learned counsel for the appellant contended that the record piouuceu by the appellant establishes forgery and fraud in obtaining the property from the Settlement Department. 'At the moment we are not concerned with this aspect of the case as it does t not form part of the leave granted to the appellant. Only two things are to be considered. Firstly, whether the investigation carried out on the basis of the application filed by the appellant can be quashed and secondly, whether the costs allowed against the appellant and respondent No.4 were proper and legal. So far the first question is concerned, it seems to be beyond the 'scope of the prayer of the appellant. Respondent ,No.l had filed a Constitution Petition challenging the validity and legality of notice/order dated 2-7-1989 by which respondent No.4 had restrained respondent No. 1 from constructing a building on the plots which he had purchased from the Settlement Department in open auction. However, while accepting the Constitution Petition and declaring the impugned order/notice dated 2-7-1989 illegal and without lawful authority, further observation was made with regard to the investigation and proceeding which respondents No.2 to 4 had initiated on the basis of the application filed by the appellant. This part of the relief was not sought for and therefore it ought not to have been granted. The- relief with regard to quashment of the impugned order/notice and declaring it to be without lawful authority was just and proper. The learned counsel for the appellant and respondent No.2 have not been able to point out to any provision under which respondent No.4 was empowered to issue a notice restraining respondent No. 1 from constructing any building on the plot. Such an order was without jurisdiction. 5. The next question arises whether costs granted and the direction that it should be paid by the appellant and respondent No.4 from their own pocket is proper and legal. Costs are granted to a person who succeeds in a litigation. Such costs are to be paid by the unsuccessful party. The object of granting such costs may be two-fold. One, to compensate the aggrieved party, who in successful assertion/defence of his right, has been put to. unnecessary litigation and harassment. The other object is to penalise a party who may have initiated any action or passed the order in complete disregard of the obvious and glaring facts and provisions of law which a reasonable person would not do unless he acts with highhandedness, arbitrarily, mala fide or (with) ulterior motive. Where a-person acting in his official capacity in co.mplete disregard of the clear records and documents and having no authority to pass order of a particular nature, passes such an order, then while setting aside such order the Court awards costs to be paid by him personally, it will be proper exercise of discretion. But such discretion is based on the facts and circumstances of the case and conduct of parties. As the order granting costs is discretionary, it should be based on well recognized principles of justice and equity and should not be fanciful, arbitrary, whimsical or capricious. Such discretion is exercised with regard to the party that will be charged with costs, the amount and the manner in which costs are to be paid. The discretion exercised by a Court should not be lightly interfered in appeal unless well settled princijMes are violated. Refer to S.S. Miranda Ltd. v Chief Commissioner, Karachi (PLD 1959 S.C. (Pale.) 134). 6. Considering the facts and circumstances of the case and the admitted position :hat respondent No.4 did not have any jurisdiction, authority or power under law to lass a prohibitory order restraining respondent No. 1 from raising construction on the ilots to which he had prima facie legal title, the costs ordered' to be paid by him 'respondent No.4) arid the appellant personally cannot be termed as whimsical arbitrary or illegal. We, therefore, refuse to interfere with the proper exercise of discretion by the learned Judge of the High Court. The appeal is partly allowed. No costs. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1993 SC 141 PLJ 1993 SC 141 [Appellate Jurisdiction] v Present: DR.NASIM HASAN SHAH, ABDUL SHAKURUL SALAM AND MUHAMMAD AFZAL LONE, JJ ShJUAZUDDIN —Appellant Versus AQILUR REHMAN SIDDIQUI and 4 others — Respondents Civil Appeal No. 1107 of 1990, accepted on 27.10.1992 (approved for reporting -• 24.11.1992) [On appeal from judgment dated 19.1.1986, of Lahore High Court, in C.M.No.5639/C of 1985, in R.F.A. No.24 of 1984.] Court Fees Act, 1870 (VII Of 1870) S.13 read with Constitution of Pakistan, 1973, Articles 2-A and 37(d) -- Plaint and memo of appeal — Court fee paid on — Refund of — Prayer for — There is conflict of opinion in views of Karachi and Lahore High Courts — Contention that in impugned judgment, High Court has erred in following view of Karachi High Court which itself had veered round to view of Lahore High Court in its subsequent judgment — Under Articles 2-A and 37(d) of Constitution, State is obligated to further ends of social justice by ensuring inexpensive and expeditious justice — To require a party to pay court fee in a proceeding where parties have compromised out of court and decided to withdraw proceedings, manifestly defeats above mandate of Constitution — Held: Conclusion reached by High Court cannot be sustained --• Appeal accepted and refund of court fee ordered. [Ppl43& 144]A, B, & C -i PLD 1976 Lahore 1268 and PLD 1988 Karachi 24 approved. PLD 1975 Karachi 178 disapproved. Dr. A. Basil, Advocate, Supreme Court, and Mr. Tanvir Ahmad, AOR for Appellant. Respondent: Ex-parte Date of hearing: 27.10.1992. JUDGMENT Nasim Hasan Shah, J, - The facts, which form the background to this appeal. are explained with completeness and clarity in the order granting leave and are. accordingly, being reproduced unchanged: "This petition for leave to appeal is directed against the order dated 19th January, 1986, whereby a Division Bench of the Lahore High Court, dismissed two applications of the petitioner (now appellant) for refund of court fees. The facts so far as relevant are' that the petitioner (appellant herein) instituted a suit for recovery of Rs.3,40,000/- under Order XXXVII CPC against the respondents on the basis of cheques. The learned Additional District Judge, Lahore , in whose court the suit was pending rejected the plaint on the ground that the suit filed by the petitioner was not competent. The petitioner (appellant herein) challenged the order passed by the learned Additional District Judge in an appeal before the High Court. This appeal was admitted to regular hearing and order under Order XXXVIII>rule 5 CPC directing the respondents to furnish security for the payment of amount claimed by the petitioner (appellant herein) was also passed, which was complied with by the respondents. However, on 14th December, 1985, the petitioner's counsel withdrew the appeal on a statement to the effect that the parties had compromised their dispute outside the Court. The appeal was, accordingly, dismissed as withdrawn. It is in these circumstances that the petitioner (appellant herein) made two applications, C.M.5638/C/85, under Section 151 CPC praying for a certificate authorising him to receive back from the Collector the amount of Rs.50,000/- paid by him for affixing court fee on the plaint rejected by the trial Court; and C.M.5639/C/85 with a similar prayer in respect of court fee paid by him on a memo of the appeal in the High Court under Section 13 of the Court Fees Act, 1870. The learned Judges of the Division Bench took the view that the provisions of Section 13 of the Court Fees Act were not attracted in the facts of this case, as neither the plaint having been rejected by the trial Court, had been ordered to be received, nor the suit was remanded in appeal under Order XLI, rule 23 CPC. On the contrary, the petitioner (appellant herein) having taken the benefit of the appeal by securing the order of security, it could not be said that the petitioner (appellant herein) had withdrawn the appeal before exercise of the judicial power. Learned Judges did not follow the view taken in Bhola Vs. Sardar Muhammad (PLD 1976 Lahore 1268) and distinguished the same on the ground that it was passed On principles of policy contained in Article 37(d) of the Constitution. They preferred to follow the Division Bench's judgment of the Sinclh High Court reported as Trade Well (Pakistan) Vs. The Standard Bank Limited (PLD 1975 Karachi 178), in which it was held that "the levy'of the court fee if sanctioned by a statute cannot be ordered to be refunded unless the law so expressly provided and that the court has no inherent power to refund the court fee as prescribed by law". Learned Judges of the Sindh High Court have further observed that inherent jurisdiction can only be invoked in cases where the amount paid as courtfee was in fact not payable in law and not otherwise like in cases of mistake of the party or court. In Bhola's case (supra) on the other hand it has been held that the High Court in its inherent jurisdiction can order refund of court fee on the withdrawal of the appeal, the proceedings in which had not gone beyond the stage of admission and that Section 13 of the Court Fees Act is not exhaustive on the grounds for refund of court fee, which view fully supports the contention of the petitioner (appellant herein). Learned counsel has also referred us to Nabi Bux Khan Bhurgari Vs. National Bank of Pakistan (PLD 1988 Karachi 24) in which view has been expressed that Section 13 of the Court Fees Act can be supplemented by other grounds in the exercise of inherent power subject, however, to the condition that the exercise of power is in the interests of • justice only. There appears to be conflict of opinion between the views of the two courts as mentioned above and an authoritative pronouncement of this court is, therefore, necessary to resolve the same. Leave is, accordingly, granted." We have heard Dr. Basit for the appellant. None has appeared to contest and the respondents are, therefore, being proceeded against ex-pane. Dr. Basit has submitted that the High Court in its impugned judgment has erred in following the view taken in Trade Well (Pakistan) Vs. The Standard. Bank Limited , (PLD 1975 Karachi 178), in preference to the view taken in Bhola Vs. Sardar Muhammad (PLD 1976 Lahore 1268) even though the Sindh High Court had itself modified the earlier view expressed in the case of Trade Well (Pakistan) (PLD 1975 Karachi 178) and had veered round to the view of the Lahore High Court in Bhola's case, (PLD 1976 Lahore 1268) in its subsequent judgment reported as Nabi Bux Khan Bhurgari Vs. National Bank of Pakistan (PLD 1988 Karachi 24). The submission is that in adopting the view it has expressed in this case it has taken a retrogressive step which is against the avowed aim of the State to make justice available to its citizens without placing undue burdens on them. We find force in these submissions. Under Article 2-A of the Constitution of 1973 (as amended in 1985) the State is obligated to further the ends of social justice which, interalia, obligate it to "ensure inexpensive and expeditious justice" 'see Article 37(d) of the Constitution). To require a party to pay Court-Fee in a proceeding where the parties have compromised their dispute outside the Court and decided to withdraw the proceedings pending before the Court, thereby not burdening it (-the Court) to expend its valuable time in examining the case, in hearing argument? in connection therewith, deliberating over the judgment thereon and then in formal!) taking tune to write it; manifestly defeats the above mandate of the Constitution as it penalises the party for approaching the Court, instead of assisting it to obtain inexpensive and speedy justice. It was incumbent upon the High Court to adopt the interpretation which furthered the objectives of the Constitution rather than negated them. Thus the conclusion reached by the High Court cannot be sustained. The result is that this appeal is allowed and it shall issue the necessary certificate authorising the appellant to recover the amount incurred by him on payment of Court Fee on the plaint and the memo of appeal. No costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SCW144 PLJ 1993 SCW144 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH CJ,ABDUL QADEER CHAUDHRY AND MUHAMMAD AFZAL LONE. JJ SULTAN — Appellant versus THE STATE — Respondent Criminal Appeals Nos. 186 and 204 of 1991, dismissed on 21.12.1992 (approved for reporting on 19.1.1993) [On appeal from judgment dated 10.6.1991, of Peshawar High Court, Circuit Bench Abbottabad, passed in Crl. Appeals Nos.39 and 40 of 1990.] Criminal Trial Murder — Offence of - Conviction for -- Challenge to -- P.W.6. admitted in cross-examination that as he was not offering a statement favourable to prosecution, he was kept in police station and when he gave his consent to depose according to wishes of I.O. his statement under Section 164 Cr.P.C. was recorded -- It is admitted by this witness that he had informed other people of village about occurrence — He also admitted that he had told every body that appellant had committed murder ~ This statement finds sufficient corroboration from PW 7 — Statements of PW 6 and PW 7 read together, furnish a complete res gestae — PW6 had told other people that appellant had killed Ibrahim much before his statement under Section 161 or Section 164 Cr.P.C. was recorded and at that time, he was not under influence of police -- Held: PW6 was a truthful witness and what he stated in examination-in-chief, is fully corroborated by PW7 — Both appeals dismissed. • [Pp 146 & 147]A.B,& C Mr.Muhammad Munir Peracha, Advocate, Supreme-Court, for Appellant. Mr. M.Azam Khan, Addl. A.G., NWFP,' Peshawar for State. Date of hearing: 21.12.1992. JUDGMENT Muhammad Afzal Zullah, C.J.- These two appeals filed by Sultan appellant arise out of the same murder case. In one he was convicted under section 302 PPC with the sentence of life imprisonment and fine of Rs.50,000/- and in the other the conviction is under Section 13 of the Arms Ordinance, 1965 with the sentence of one year R.I. and fine of Rs.500/-. In the order for grant of leave to appeal the following point has been rioted for examination:- "There is only one eye-witness namely Kasho PW 6. In his crossexamination, he said that "I was brought by the police to P.S. I was kept by the police in P.S. for 4/5 days. My statement was recorded thereafter and I was brought before a Magistrate where my statement was got recorded u/s 164 Cr.P.C. After getting my statement recorded before a Magistrate u/s 164 Cr.P.C. then I was allowed to proceed to my house. My statement was recorded by the I.O. u/s 161 Cr.P.C. about 2 days after the occurrence in the P.S. It is correct that I was not offering a statement favourable to the police so I was kept in the P.S. When I gave my consent that I will depose according to the wishes of the I.O. so the complainant and the police brought me to the Co'urt for getting my statement recorded u/s 164 Cr.P.C." We have gone through the deposition.of Kasho PW.6. It reads as foll^ws: "That on the day of occurrence at about 9.30 a.m. I and'Ibrahim deceased were grazing the buffaloes in Ghari Bela. Menawhile Sultan accused present in Court came from Mian Dheri said and asked Ibrahim deceased as to why he was grazing the buffaloes in Ghari Bela. An altercation took place between Sultan and Ibrahim deceased and Sultan accused caught hold of the deceased from his collar of the shirt and fired at Ibrahim deceased which hit him in his stomach and then he fired a second shot which hit on his thigh. On receiving the fire shots Ibrahim deceased fell down on the ground and the accused ran away towards village Galalia. While running away the accused fired a third shot in the air. In my presence Ib'rahim deceased succumbed to his injuries and died on the spot. After that I went to the village and informed about the occurrence to my brother Chato and other people of the village-. I told them that Sultan accused had murdered Ibrahim deceased by the fire shots and his dead body is lying in the Ghari Bela. After informing the occurrence to my brother and the othar people in the village I went back to the spot in Ghari Bela. I was examined by the police u/s 161 Cr.PC. and subsequently my statement was recorded before the Ilaqa Magistrate u/s 164Cr.P.C." The admission made by this witness in cross-examination which helps the appellant has already been reproduced above. If the main assertion made by this witness | of having witnessed the occurrence is put in juxta position to the said admission a reasonably good ground arises that the witness might have been pressurised by the I police for binding him down to the police version only. But on deeper scrutiny another more reasonable hypothesis has emerged after the careful reading of the evidence on the question of the guilt or otherwise of the appellant. It is admitted by this, witness that there were other people of the village who were informed about the occurrence. They included his brother Chato as well as other residents of the village. He also admitted that he had told every body that Sultan had committ--d murder. This statement finds | sufficient support and corroboration from the testimony of Ahmed Shah PW-7. He | stated that although the Punjabees (the locale is in N.W.F.P.) do not own any property •in the village, they however keep their cattle in the Bela of Khan Ghari. Ibrahim I deceased was one of x the labourers employed by the Punjabees and he used to graze I their cattle in the Bela. He also admitted that the cattle of the uncle of Kasho P\V were | also being'looked after by Ibrahim deceased, as a labourer. Ibrahim had no cattle of his - | own. With this background he admitted that at about the time of occurrence he was h . present in the village Chowk when some Punjabi was saying that Sultan accused had murdered Ibrahim in Ghari Bela. This witness then informed Sareen Shah in Adda Miskeenabad to go to Shaikh Choor so as to inform Gul Habib about the murder of his son. The witness himself proceeded to village Ghurghushti on his own errand. The statements made by Kasho and Ahmad Shah when read together furnish a complete rex gestae. The evidence so recorded, is otherwise admissible under the Evidence Act. Even if it falls within the definition of hear-say as "said" by the by-standers or even the accused and witnesses at or about the time and place of occurrence, it becomes evidence even if it comes through second source. In that situation it becomes valuable direct [evidence. Thus it appears that Kasho had told other people as well much before his statement was recorded by the police under Section 161 or was got recorded under Section 164 of the Cr.P.C. that Ibrahim had been killed by Sultan. It is an admitted position that at that stage he was not under the influence of the police. Notwithstanding the foregoing analysis during the discussion learned counsel for the appellant argued that had he (PW 6) been a truthful witness there was no need to bind him down under Section 164 Cr.P.C. Although it would not have been necessary to deal with such a comment there are many explanations. One, as in this case it could be that Kasho was a boy of 16/17 years and an outsider Punjabi in Pakhtoon area. He belongs to non-owner .class while the parties in the murder qase were the locals and owners as well as elders. The police could very well apprehend that a person like Kasho despite being a truthful witness could be brought under an adverse influence so as to either deny his having seen the occurrence or to spoil the case of the prosecution by making slanting admissions. This supposition is fortified by the fact that Kasho did then try to make, admissions. He at least had been under heavy influence of the locals, in our view Kasho was a truthful witness and what he stated in the examination-in-chiet is fully supported and corroborated by Ahmad Shah PW-7. In the light of the foregoing discussion there is no force in the main appeal. Regarding the other the learned counsel did not press it. The same, accordingly, stands dismissed. Thus both the appeals are dismissed. (MBC) (Approved for reporting) Both appeals dismissed.

PLJ 1993 SC 147 PLJ 1993 SC 147 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ and WAL1 MUHAMMAD KHAN.J Sardar ANWAR ALI KHAN and 10 others - : Appellants versus Sardar BAQIR ALI, through his legal heirs, and 4 others — Respondents Civil Petition No.235-P of 1991 (converted into appeal), dismissed on 5.8.1992. [On appeal frem judgment/order dated 7.9.1992, of Peshawar High Court, passed in C.R. No. 1'64 of 1991J. Inheritance Suit claiming inheritance — Dismissal throughout of — Challenge to — Plaintiff/appellants failed to produce any documentary evidence to show that Haider Ali, their alleged predecessor was son of Atai Khan and their bold allegation that Atai Khan was their great grand-father, cannot be accepted particularly when claim to huge property is involved — Even if it is assumed that plaintiff/appellants are descendants of Yousaf Khan, even then they were left with no proprietary rights in estate even according to pedigree table 1895-96 produced bythemselves — Held: All three forums have concurrently held that defendant/respondents are owners of suit property and that plaintiff/appellants are not proved to be joint proprietors with them — Held further: Findings of fact are not open to challenge at this stage when no illegality, jurisdictional error or misreading or non-reading of evidence could be pointed out — Appeal dismissed. [P. 149 JA&B Mr.Abdul Hamid Qureshi, AOR for Appellants. Sh. Wazir Ahmad, AOR for Responents 2, 3, & 4. Date of hearing: 13.5.1992. JUDGMENT Wall Muhammad Khan, J. - Sardar Anwar Ali and others, appellants herein, successors-in-interest of Akbar Ali Khan, filed a declaratory suit against Sardar Baqir Ali Khan and others claiming to be joint owners in the suit property alongwith them being the descendants of common ancestor; that the entries of the revenue record wherefrom their names were omitted are wrong, illegal, based on fraud and collusion of the defendants/respondents; and that they need correction. 'Prayer for perpetual injunction was also sought to restrain -the defendants/respondents from alienating the suit property in any way and possession was also sought. The suit was contested by the defendants/respondents, and they in their written statement not only denied the joint ownership of the suit property but disclaimed their alleged relationship with.them. Necessary issues in the case were framed, evidence led thereon recorded and the learned trial Judge, vide, his judgment and decree dated 31.5.1989, dismissed the suit of the' plaintiffs/appellants holding-thai they had not proved themselves to be collaterals of the defendants/respondents nor joint owners with them and that the entries of the revenue record correctly showed the defendants/respondents a^j owners of the suit land. The appeal filed against it was also dismissed vide judgmenl dated 24.2.1991 and so was the revision petition filed before the High Court vide judgmenl dated 7.9.1991 delivered by the learned Chief Justice. The plaintiffs sought leave to appeal vide Civil Petition No.235-P/91 which was heard on 13.5.1992 and converted into appeal as reappraisal of the documents placed on the record was felt necessary. Hence the instant appeal through leave of the Court. The learned counsel for The appellants vehemently argued that the predecessorin-interest of the plaintiffs/appellants had left the village and had settled elsewhere on account of blood fued and thai the ancestors of the defendants/respondents who were C influential and were holding important posts in the Revenue Departmenl, manoeuvred h< to show the predecessor-in-interesl of Ihe plainliffs/appellants; namely, Atai Khan as issueless and got his property entered in Iheir names as full ownership. He alleged that the plainliffs/appellants had been receiving their share of produce and when they came to know that their names did not find mention in the revenue record they felt the o - necessity of filing the present suit. Reliance was placed on the pedigree-table n , Ex.PW2/l. The learned counsel for Ihe respohdenls, on the other hand, reiterated the O] grounds mentioned in the judgments of the lower three forums and submitted that the j r copy produced is not an authenlic document; that the'A.O.K. was the proper person lo produce Ihe original Shajra-i-Nash and the other record-of-rights; and lhal no efforts were made by.the plaintiffs/appellants lo h'nk Ihemselves wilh the said Atai Khan. The plaintiffs/appellants in support of their allegations produced the Patwari Halqa and Muhammad Rafique besides the slatement of Anwar Ali Khan n plaintiff/appellant himself as PW-2. The defendants/respondents rest contented with | the -statement of Sardar Muhammad Hayat defendanl No.4 and Malik Umra Khan 1 defendant No.5 and relied on the copies of the revenue record in support of their case. P It is not disputed by the plaintiffs/appellanls thai they are neither shown as co-owners in the ownership column nor shown in possession of any part of the suit property rather it is conceded by them that the suit land had throughout been shown as exclusive ownership of the defendants/respondents. The burden of proof, therefore, heavily lay upon them to affirmatively establish that their ancestor was joint owner with the ancestor of the defendants/respondents. There is no evidence in this respect oral or documentary on the file. As stated earlier, the plaintiffs/appellants rely on the copy of the Shajra-i-Nasb Ex.PW2/l wherein Yousaf Khan is shown as the first cousin of Khan Baba Khan and others ancestors of the defendants/respondents. Yousaf Khan is shown as survived by Sher Ali Khan, Afzal Khan and Asif Khan, the latter shown survived by Atai Khan who died issueless. The plaintiffs/appellants' case is that Atai Khan was survived by his son Haider Ali Khan who was the grandfather of Anwar Ali Khan and others plaintiffs/appellants. This pedigree table is alleged to be of the year 1895-96. The plaintiffs/appellants failed to produce any documentary evidence to show that Haider Ali, their alleged predecessor, was the son of Atai Khan and in the absence of any evidence oral or documentary their bald allegation that Atai Khan was their great­ grandfather cannot be accepted particularly when claim to huge property is involved. Even this document cannot come to their rescue because there is a note on this very document that the heirs of Yousaf Khan; namely, Sher All Khan, Afzal Khan and Asif Khan have sold their property in favour of Khanan Khan (7 £«£/?ra.v(shares)) predecessor-in-interest of the defendants/respondents alongwith share of Sham Hat and the remaining 8 bakhras in favour of Niaz Muhammad and others sons of Dost Muhammad with share of Shamilat. As such, even if it is assumed that the plaintiffs/appellants are descendants of the said Yousuf Khan, even then they were left wkh no proprietary rights in the estate even according to the pedigree table 1895-96 produced by themselves. The suit land is consistently recorded in the name, of the predecessor-in-interest of the defendants/respondents and in the names of their successors for the last about a century and during this long period jamabandis were prepared and alienations were effected resulting in the incorporation of the transferees as owners in the revenue record but no efforts were made by the plaintiffs/appellants or their ancestors to correct them. The present suit filed by them after such a long time was hopelessly barred by time as well, in the above context. All the three forums have concurrently held the defendants/respondents as owners of the suit property, the entries of (he revenue record correctly showing them as proprietors and that the plaintiffs/appellants not^proved to be joint owners with them. These findings are essentially findings of fact and are not open to challenge at this stage when no illegality, jurisdictional error, or misreading, or non-reading of evidence could be pointed out. Resultantly, finding-no merit in the instant appeal, the same is dismissed with no order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 150 PLJ 1993 SC 150 [Appellate Jurisdiction] Present:.MUHAMMAD AFZAL ZULLAH, CJ AND WALI MUHAMMAD KHAN, J SHAMIR, DECEASED, THROUGH WARY AM and 4 others-Appellants versus FAIZ ELAHI, DECEASED, THROUHG ZULFIQAR and 4 others-Respondents Civil Appeal No.74 of 1992, dismissed on 2.6.1992 (approved for reporting^on 24.10.1992) [On appeal from judgment/order dated 24.12.1991, of Lahore High Court, Multan . Bench, passed in RSA No.988 of 1979] Colonization of Government Lands Act, 1912 (V of 1912) S.19-Specific performance of agreement to sell — Suit for -r Suit decreed – Challenge to — Whether suit could not be decreed due to non-obtaining of sanction under Section 19 of Act — Question of — It-is evident from documentary evidence that predecessor of appellants had acquired proprietary rights of suit land on payment of necessary consideration, and at time of execution of agreement to sell and decree for specific performance, he was full-fledged owner of suit property and competent to sell same under law—No evidence worth name was produced to substantiate wild allegations of fraud and undue influence — Held: Allegations made by .predecessor of appellants for declaring decree as invalid for want of sanction under Section 19 of Act, were unfounded—Held further:Impugned judgment of High Court does not suffer from any legal infirmity or misreading or non-reading of evidence -- Appeal dismissed with compensatory cost. Mian Muhammad Siddlque Kamyana, Advocate, Supreme Court, and Mian Ataur \ Rehman, AOR(absent) for Appellants. Ch. M. AshrafAzeem, Advocate, Supreme Court, and Ch. Muhammad Aslam, AOR (absent) for Respondents. Date of hearing: 2.6.1992. JUDGMENT Wali Muhammad Khan, J - Waryam and others, heirs of Shamir deceased/plaintiff, appellants herein, through leave of the Court, challenge the judgment dated 24.2.1991 of the Lahore High Court, Multan Bench,' whereby Regular Second Appeal No.988/79 filed by the heirs of Faiz Elahi deceased defendant, respondents herein, was• accepted, the judgment and decree of the Additional District Judge as an appellate Court dated 2.12.1979 was set aside and that of the trial Court restored.' The leave granting order is as follows:-"Leave to appeal is granted to examine the following questions of law: (1) Whether specific performance could at all be ordered when the tenant had not acquired the proprietary rights nor had the transferee obtairted permission of the Collector under S. 19 of the Colonization of Government Lands Act, 1912. (2) Whether, in ordering specific performance and maintaining it under the impugned orders, the violation of express provision of S. 19 of the Colonization of Govt. Lands Act, 1912, has not taken place". The facts of the case, briefly stated, are that Shamir, predecessor-in-interest of the appellants was owner of the suit land equal to 1/6 share measuring 30 Kanals 7 marlas out of Khewat No.71/49 measuring 182 kanals 4 marlas recorded in the jamabandi 1961-62 situated in Chak No.62/5.L Tehsil and District Montgomery. He applied to the Collector under Section 19 of the Colonization of Government Lands Act, 1912 (hereinafter to be referred as the Act) for grant of .sanction to alienate the suit property but the same was rejected on 29.9.1963. However, he executed an agreement to sell the suit land dated 1.11.1963 in favour of Faiz Elahi for a sum of Rs.10,000/- out of which he received Rs.5,000/- as earnest money and the balance was to be paid at the time of execution of the regular sale deed. Faiz Elahi instituted a suit for specific performance which was decided on the basis of compromise and decreed vide orderdated 21.6.1965. Shamir, predecessor-in-interest of the appellants, filed a suit against Faiz Elahi for declaration that the decree dated 21.6.1965 passed for the specific performance of the suit land was illegal, without consideration, based on fraud and. collusion, and obtained through undue influence, hence ineffective on his rights. Prayer for perpetual injunction to restrain the defendant from interference in his possession was also solicited. It was alleged in the plaint that he was occupancy tenant of the suit land and had not yet acquired the proprietary rights; that he was a eunuch having bad health and was under the undue influence of the deceased defendant; that the defendant through fraud secured the thumb impression of the plaintiff on the application for permission for the sale of land to the Collector as well as on the agreement to sell dated 1.11. 1963 and later on -fraudulently and collusively obtained decree for specific performance from the civil Court dated 21.6.1965 without .paying anything to him. The defendant contested the suit and besides the denial of allegations made by the plaintiff in the plaint, alleged that the plaintiff had already acquired proprietary rights on 1.7.1958 in respect of the suit land which was evident from the general power of attorney dated 6.9.1962 in favour of defendant and, in consequence, there Vvas no need for sanction of the Collector for the alienation of the suit land. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Judge dismissed the suit of the plaintiff vide judgment and decree dated 30.6.1975. However, he appeal filed against it succeeded vide the judgment and decree dated 2.12.1979 whereby the judgment of the trial Court was set aside and decree prayed for was granted in favour of Shamir plaintiff/predecessor-in-interest of the appellants. "The heirs of the defendant preferred Regular Second Appeal against it which was accepted through the impugned order, hence the instant appeal through leave of the Court.We have heard Mian Muhammad Siddique . \dvocate, for the appellants; Ch. Muhammad Ashraf Azeem, Advocate, for the respondents; and have perused the record of the case with their assistance. 'The.learned counsel for the appellants argued that the suit land being occupancy tenancy could not legally be alienated without the prior sanction of the Collector under Section 19 of the Act ibid, and that the agreement to sell already executed by Shamir in favour of Faiz Elahi besides being fraudulently obtained and without consideration. could,not he specifically enforced through the civil Court and, in consequence, the decree for specific performance is illegal and not binding on the plaintiff. The learned counsel for the respondents, on the other hand, argued that section 19 of the Act ibid' bars alienation of the-occupancy rights and not the execution of agreement to sell. However, according to him Shamir had already acquired proprietary rights in 1958 and Section 19 "was" inapplicable to the transfer in question. It was held by -a Division Bench of this Court in the case of Ghuhim Rasul Vs. Muhammad Anwar (1969 S.C.M.R 254) that a transfer prohibited by Section 19 of the Colonization of Government Lands (Punjab) Act, 1912 is void even a^ between the parties to the transaction and that in the absence of such consent, in writing of the Government, no specific performance of an agreement to sell could be ordered. However, a Full Bench of this Court in case Muhammad Iqbal Vs. Mirza Muhammad Hussain (P.L.J 1986 Supreme Court 154) held that agreement to sell was not hit by the provisions of Section 19 of the Act ibid. The latter judgment was followed in the case of Akhtar Ali Vs. Muhammad Hanif (1989 S.C.M.R 604) and Muhammad Afial Vs. Rehrnat All (1991 S.C.M.R 1785). Consequently, even if Shamir had not acquired the proprietary rights before the sale in favour of'Faiz Elahi defendant trie agreement to sell and the decree passed thereon could not be held to be void under the law. It is evident from the documentary evidence placed on the additional paper book that Shamir had acquired the proprietary rights of the suit land on pa\mcnt of necessary consideration arid at the time of execution of the agreement to sell and the decree for specific performance he was full-fledged owner of the suit property and competent to sell the same under the law. The allegations made by him in his plamt for declaring the decree for specific performance as invalid for want of sanction under Section 19 of the Act were unfounded and rightly ignored by the trial Court as well as the High Court. As regards the fraud and undue influence alleged by the plaintiff, suffice it to say, that no evidence worth the name was produced to substantiate th<- ' ild allegations made by him. The witness produced by the plaintiff did not say a word about the allegation of fraud, unclue influence or collusion and their statements are in the nature of mere hearsay. The plaintiff himself did not appear as a witness to depose on oath/solemn affirmation regarding the fraud or undue influence practised upon him in the execution of the agreement to sell and the compromise resulting in the passing of decree for specific -performance by the civil Court. Needless to mention that fraud must be proved through strong and independent evidence and in the case in hand, no evidence at all was produced in support of the allegation of fraud, fhe impugned judgment of the High Court, therefore, does not suffer from any legal infirmity or misreading or non-reading of evidence. Resultantly, the instant appeal is dismissed. However, we are of the view that 1 the plaintiff/predecessor-in-interest of the appellants dragged the defendant/respondents in a protracted litigation without any rhyme or reason and put them to unnecessary C financial loss, mental torture and agony, and to compensate them we burden the deceased/plaintiff Shamir with compensatory cost of Rs.50,000/- which shall be recoverable from his estate in the hands of his legal heirs (appellants herein). (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 153 [Appellate Jurisdiction] PLJ 1993 SC 153 [Appellate Jurisdiction] Present: ABDUL QADEER CHAUDHARY, MUHAMMAD RAFIQ TARAR AND WAL1 MUHAMMAD KHAN, JJ MUHAMMAD NAWAZ KHAN and another—Appellants versus MUHAMMAD IJAZ RASH1D and 3 others—Respondents Civil Appeal No.88 of 1990 (also C.A No. 1271 of 1990) decided on 4.10.1992 [On appeal from judgments dated 23.8.1989 and 24.6.1990, of Federal Service Tribunal, Islamabad, in Appeals Nos.284 (R) and 288 (R) of 1988 respectively] Seniority Direct appointees and promotees— Inter-se seniority of —Determination of—Ratio of judgments as well as reasoning advanced in judgment of Service Tribunal and statutory provisions and rules is that direct recruits appointed against reserved seats having fallen vacant earlier in time, shall rank senior to promotees holding officiating appointments though promoted earlier than direct recruits— Held: Applying above test, appellants were rightly shown as senior to respondent No. 1 by department in appeal No.88 of 1990 and there was no justification for Service Tribunal to upset this seniority— Held further: Respondent No.3 (in appeal No. 1271 of 1990) is senior to appellants and was rightly declared as such by Service Tribunal. |P 158 & 159|A,B.&C PLD 1970 SC 203, PU 1985 SC 175, 1985, SCMR 1107, PLJ 1992 SC 237 and PLJ 1991 Tr.C (Services) 85 dixi-usxed. Ch. M. Akram, Advocate, Supreme Court, and Mr. Manz.oor Ilahi, Ex. AOR for Appellants (in C.A No.88 of 1990). Kh. Muhammad Farooq, Advocate, Supreme Court, and Mr. Initial. M. Khan, AOR for Respondent No. 1 (in CA No.88 of 1990). Hafiz. S.A Rehtnan, Advocate, Supreme Court, and Mr. Initial M. Khun. AOR for Respondents No.2 & 3 (in C.A. No.88 of 1990). Shah Abdur Rashid, Advocate, Supreme Court, and Mr. Ejaz Muhammad, AOR for Appellants (in C.A. No. 1271 of 1990). C/7. IjazAlmmd, D.A.G. and Ch. Akhtar Ali, AOR for Respondents 1 and 2 (in C.A 1271 of 1990). Ch. AkhtarAli, AOR tor Respondent No.3 (in C.A 1271 of 1990). Date of hearing: 28.6.1992. " JUDGMENT VV'ali Muhammad Khan, J.- Muhammad Nawaz and Khalid Mahmood ' appellants in Civil Appeal No.88 of 1990, through leave of the Court, have challenged c the judgment dated 23.8.1989 passed by the Federal Service Tribunal, whereby the ( appeal filed by Muhammad Ijaz Rashid, Respondent No. I. was accepted and the appellants herein were ordered to be placed junior to him. Similarly, Muhammad Israr ' and Anjum Bashir Shaikh, appellants in Civil Appeal No. 1271 of 1990, feel aggrieved ' from the judgment dated 24.6.1990 of the Federal Service Tribunal, whereby the appeal tiled by Muhammad Munsif. respondent No.3 herein, was accepted and he was / declared senior to the appellants. Since both the judgments are based on Para.C of the < General Principles of Seniority (Estacode 1989 Edition page 227) in which it is ] provided that promotees shall as a class be senior to those appointed b\ direct ( recruitment in the same year, both the cases were ordered to be heard together and ] accordingly, this single judgment will dispose of both the appeals. The tacts of the case of Appeal No.88 of 1990 are that Muhammad l|az Ra^hid. respondent No. I, was appointed as Lower Division Clerk on 13,6,19^4 anJ was promoted as Upper Division Clerk temporarily from 15.s. 19^4 w-.t ^•jc: N'.v ADMN- 2-1/73 dated 15.8.1974, he was subsequently regularised a- -luh rc:r -^p-. t:\ eh with • effect from 15.8.1974. He was promoted a- A-i-tant v. ith ctlc.: tr.-y, 3U.5.I979 against a vacancy of departmental quota which became available in the ;>car 19~9. The appellants were appointed respectively on 8.3.1979 and 20.5.1979 a> direct recruits I as:ainst the accumulated vacancies fallen vacant in the \;ear 1977 and. 1978, mj. 4tL imx. basis as Assistants which was later on regularised retrospectively. In the seniority list prepared by the Department the appellants were placed senior to respondent No. 1 against which a representation was made by respondent No. 1 to the Direcior General T&T but with no success vide order dated 18.10 1988. whereafter he preferred appeal before the Service Tribunal which was accepted through the impugned order.The tacts of the case of Appeal No. 1271 of 1990 are that the appellants were directly appointed as Assistants on 2.7.1983 and 6.2.1984 respectively, whereas respondent No.3 was initially appointed as Lower Division Clerk on 20.1.1973, promoted as Upper Division Clerk on 2.10.1974 and then as Assistant from 30. . 1983. The quota fixed tor direct recruits and promotees admittedly is 50/50. A seniority list was circulated on 28.6.1988 wherein the appellants were placed senior to respondent No.3, who, aggrieved therefrom challenged the same before the Service Tribunal vide Appeal No.288 (R)/1988 which was contested by the Department as well as the appellants. The learned Service Tribunal, vide the impugned order, declared him senior to the appellants.We have heard the learned counsel for the parties in both the appeals and have perused the respective record of the cases. The learned counsel for the appellants vehemently argued that the rule quoted above and relied upon by the learned Service Tribunal was not attracted to the facts of the present cases and that the learned Service Tribunal omitted to consider the relevant rules relating to the fixture of inter se seniority between direct recruits and the promotees viz-a-viz their regular appointment against their respective quotas and have ignored the several reported judgments of this Court in this respect. The learned counsel for the respondents, on the other hand, supported the judgment of the Service Tribunal. The question of seniority came up for consideration before this Court in the case of Khuslii Muhammad Vs. The General Manager, Pakistan Western Railwav (P.L.D. 1970 Supreme Court 203) and the broad principle enunciated therein is reproduced as follows I'­ ll is wholly against all notions of natural justice that persons who join service in a grade first should be relegated to a |umor position as against those who |om later, merely because they fill vacancies which were deemed to hereserved for them. In our view, the ratio 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 he extended to the fixation of their seniority on their confirmation inter se. All the incumbents have to be treated at par in the matter of 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 promotee 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 ol seniority to one who is appointed later in the same capacity against a reserved post in the same grade". However, at the time of announcement of the above judgment of this Court the Civil Servants Act, 1973 had not yet been promulgated in which provision for fixation of seniority was made under Section 8 thereof. For convenience sake, it is quoted below m extenso:- Scniority: (1) For proper administration of a service, cadre of post, the appointing authority shall cause a seniority list of the members for the timt being in such service, cadre or post to be prepared, but nothing herein container shall be construed to confer any vested right to a particular seniority in suci service, cadre or post, as the case may he. (2) Subject to the provision of suh-section(l), the seniority of a civil servan shall be reckoned in relation to the other civil servants belonging to the sairu service or cadre, whether serving in the same department or office or not, a may be prescribed. (3) Seniority on initial appointment to a service, cadre or post shall hi determined as may be prescribed. (4) Seniority in a post, service or cadre to which a civil servant is promote shall take effect from the date of regular appointment to that post: Provided that, civil servants who are selected for promotion to a higher post in one hatch shall, on their promotion to the higher post, retain their inter xe seniority as in the lower post. After the enforcement of the above Act, the matter came up for consideration before this Court in the case of Federation of Pakistan Vs. Azain AH (PU 1985 SC 175) wherein too. the dispute regarding inter xe seniority amongst the direct recruits and the promotees and also their appointment against reserved quotas was in issue. After incorporating the relevant provisions of the Civil Servants Act it was held that the direct recruits appointed against vacancies having fallen vacant prior in time in the reserved quota for direct appointment shall rank senior to those appointed earlier but not against a vacant seat in the reserved quota meant for the promotees. It is worthwhile to reproduce the relevant portion on page 181 and 182 of the cited judgment: - "It follows from Section 9 of Act, which provision the Tribunal failed to even take note of. that departmental candidates are eligible for promotion only against the quota reserved under the rules for their promotion. It is not disputed that the reservation was in the ratio of 75 to 25 per cent in favour of the direct recruits. The departmental candidates were, therefore, not eligible for promotion against quota in excess of the quota reserved for them. The fact remains that promotion in excess o; the quota was made. It could be by altering the ratio itself which was never expressly done or it could he as envisaged in the Act itself pending recruitment in accordance with the prescribed method. The direct recruitment takes some time in advertising the posts, in determining the eligibility and in selecting the candidates. While this procedure is being undergone it may be that the promotion posts meant for direct recruits cannot be kept unfilled and the jobs cannot remain unperformed. To cater for such a situation the departmental promotion is provided for but it is only pending the selection of the direct recruits and such an appointment on the strength of the definition of ad-hoc appointment qualifies as ad-hoc appointment. An appointment cannot be treated as regular even though it be made in violation of Section 9 of the Act. The Tribunal, it appears, has while interpreting rule 7 of the Appointment, Promotion and Transfer Rules and the other provisions ignored altogether the existence and the legal effect of section 9 of the Act. The " view taken of rule 7 in isolation is not in accord with the express provisions of Section 9 of the Act". The above dictum was followed in subsequent case of Malik Ghulam Raxool Vs. Government of Punjab (1985 S.C.M.R 1107) wherein it was declared that promotion/appointment of petitioner in that case being on ad-hoc basis in excess of quota reserved for promotees and against a post meant for initial recruitment, on arrival of rightful person, he would stand reverted in normal course. In a recent judgment in case Ghulam Ahmad Vs. Federation of Pakistan (PU 1992 SC 237) the above principle, more or less, was reiterated in para 10 and 11 of the judgment as follows:- 10. The words "to officiate" used in para. 121(1 )(h) 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 been happened. That 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-I post, would not entitle him to claim absorption in a grade 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 (l)(b) of the Code did not entitle the appellant to 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 (l)(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 paras 120 and 121(1 )(b) of the Code and by no other provision, read with General Principles of Seniority and section 9 of the Civil Servants Act". The learned counsel for the appellants produced photostat of the attested copy of the judgment of the Service Tribunal in appeal No.l7(R)/89 dated 24.1.1989 titled. Muhammad Arif Kayani Vs. Chairman, Federal Public Service Commission and 1 Secretary, Establishment Division and others decided on 14.1.1991 [reported as PLT 1991 Tr.C (Services) 85] wherein also the question of seniority amongst the Assistants'" of the Federal Public Service Commission was involved and the learned Service' Tribunal basing its decision on office memorandum No.6/l/649-ME dated 2.5.1951, e published in the Establishment Manual Volume II at pages 316 to 318 paragraph 5, e came to the conclusion that the parties before it were governed by specific rules ot • seniority contained in the said memorandum and, in consequence, general principle oF seniority that promotees of particular year shall reckon seniority over the direct recruit;-" will not be applicable in their case. These conclusions are in direct contrast with the' findings given in the judgments impugned herein. nt The ratio of the judgments cited above as well as the reasoning advanced in thtof judgment of Service Tribunal in appeal No. 17(R)/89 [PLJ 1991 Tr.C(Services)85| antot , the statutory provisions and the rules is that the direct recruits appointed agains 158 SC MUHAMMAD NAWAZ KHAN V. MUHAMMAD IJAZ RASHID PLJ [Wall Muhammad Khan, J/ (reserved seats having fallen vacant earlier in time shall rank senior to the promotees holding officiating appointments though promoted earlier than the direct recruits. Applying the above test, appeal No. 88/1990 filed by Muhammad Nawaz and Khalid Mahmood must succeed. As discussed in the earlier part of the judgment, Muhammad Nawaz was appointed on 8.3.1979 and Khalid Mahmood was appointed on 20.5.1979 as direct recruits against vacancies of reserved quota meant for direct recruits having fallen vacant in the year 1977 and 1978 whereas Muhammad Ijaz Rashid, respondent No. 1 was promoted with effect from 30.5.1979 against the seat meant for promotees which became available in the year 1979. They were rightly shown as senior to respondent No. I by the department because, not only their appointments were prior in time but the vacancies against which they were initially recruited had fallen vacant prior to the vacancy against which respondent No. 1 was promoted and there was no justification for the learned Service Tribunal to upset this seniority simply because the appointments had been made in the same year without regard to the occurring of vacancies in the respective reserved quotas. Accordingly, the impugned judgment of the Service Tribunal in Appeal No.88/1990 is set aside and by restoring the seniority list prepared by the department, the appellants are declared senior to respondent No. 1. As regards appeal No. 1271/1990, the appellants therein, namely, Muhammad Israr and Anjum Bashir Shaikh were respectively appointed Assistant as direct recruits on 2.7.1983 and 6.2.1984 whereas Muhammad Munsif, respondent No.3, was promoted as such from 30.1.1983. The minutes of the meeting of the Departmental Selection Committee-II, Law Division, available on page No.4 of the paper book reveal that there were 28 posts of Assistant out of which 14 were already occupied by the directly recruited Assistants and, as such, the vacant posts were to be filled in by promotion and, in consequence, Muhammad Munsif, respondent No.3, was recommended for appointment against one of the vacant posts. Therefore, the appointment of respondent No.3 was regularly made against a vacant seat which was to be filled in by promotion according to their fixed quota of 50:50. Consequently, respondent No. 3 is senior to the appellants and was rightly declared as such by the i Service Tribunal. Appeal No. 1271 of 1990 is, accordingly, dismissed. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1993 SC 158 [Appellate Jurisdiction] PLJ 1993 SC 158 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ and SAIDUZZAMAN SIDDIQUI, J. MUHAMMAD ASLAM-Appellant versus Syed AHMAD NAEEM and 9 others-Respondents Civil Appeal No.65 of 1992, accepted on 24.6.1992 (approved for reporting on 24.8.1992) [On appeal from judgment, dated 27.2.1991, of Lahore High Court, Multan Bench, passed in W.P. No.47 of 1986) PLJ Learned Counsel for the appellant reiterated the argument noted in the leave grant order and cited several judgments in support thereof, including Muhammad Warrayam Vs. Member, Board of Revenue, Punjab Lahore and 3 others (1972 SCMR 354), Muhammad Ramian Vs. Member (Revenue) Board of Revenue and others (1989 SCMR 614), Sardar Muhammad Vs. Muhammad Hafiz and others (1989 SCMR 1941 (1)) and Shaukai All and another Vs. Muhammad Shaft and 2 others (1991 SCMR 1504). He also tried to analyse Rules 17 & 19 relating to the appointment of Lumberdar. Learned Counsel for the respondent, on the other hand relying on Hiiji Noorwar Jan Vs. Senior Member, Board of Revenue, NWFP, Peshawar and 4 others (P.L.D 1991 S.C. 531) contended that ordinarily the High Court would not interfere in the appointment of Lumherdars, hut there is no bar in correcting any legal error which has already been committed and then leaving the appointment to the exclusive domain of the Revenue Authorities. Learned Counsel for the appellant rightly pointed out in this behalf that the High Court instead of waiting for the decision by the Revenue authorities on various legal points involved in this case including whether Rule 17 or Rule 19 would he attracted' took up on itself the function of the Revenue authorities to adjudicate upon the appointment of the so-called successor Lumherdar. According to him it was yet to he (decided whether the original appointment of Mufti Zia-uI-Hussain on the newly added post was not proper nor with lawful authority. After the said decision, several other legal and factual aspects would have been examined by the authorities concerned, so as to appoint a successor Lumberdar. This would also he a moot point whether or not Rule 17 or Rule 19 is attracated. With respect, we are of the view, that the High Court itself fell into error in interfering with the remand order. It was during the remand proceedings that the questions of fact and law involved in this case would have been decided by the designated authorities. It is only thereafter, namely, after ultimate decision of the Board of Revenue (after/subsequent to remand proceedings) that the High Court might/could have examined the matter in its writ jurisdiction. And interference would have been possible only if the requirements indicated in the case of Muhammad Younus already noticed, would have been satisfied. In the light of the foregoing discussion, this appeal is allowed, the impugned judgment is set aside and the writ issued by the High Court is recalled. There shall be no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 160 PLJ 1993 SC 160 | Appellate Jurisdiction) Present: DR. NAS1M HASAN SHAH, MUHAMMAD AFZAL LONE AND SAJJAD ALISHAH.JJ DR. GHULAM AKBAR KHAN NIAZ1 —-Appellant versus SECRETARY, ESTABLISHMENT DIVISION, and 7 others — Respondents Civil Appeal No.72 of 1990, dismissed on 15.8.1992. [On appeal from judgment dated 28.2.1989, of Federal Service Tribunal, Islamabad , passed in Appea] No.90 (R) of 1994.] Seniority Government servants — Seniority of ~ Whether President could pass order under Section 23 of Civil Serevants Act, 1973 conferring seniority on respondents 3 to 8 retrospectively ~ Question of — Respondents were absorbed in Ministry of Education in 1974 in Grade 18 with approval of Minister of State for Establishment who was competent authority — Their cases were examined by Review Board under Section 12-A of Act and then referred to President who accorded his .approval of their absorption — Appellant never raised any objection at relevant time against their absorption which attained finality — Held: Under Section 23 of Act, President has power to pass order fixing respondent's seniority from dates of their induction in Ministry of Education — Held further: Impugned order does not suffer from any illegality — Appeal dismissed. [Pp 163 ]A,B, & C. PLD 1990 SC 1013 rel. . PLD 1991 SC 35 distinguished. Shah. Abdur Rashid, Advocate, Supreme Court, instructed by Mr.Manzoor Elahi, Ex- AOR for Appellant. Ch. Ijaz Ahmad, Deputy Attorney General, instructed by Ch.Akhtar All, AOR for Respondents. Date of hearing: 17.3.1992. JUDGMENT Muhammad Afzal Lone, J.~ Leave to appeal was granted to examine "whether (i) the President can deal with a group of civil servants which .adversely affects any other civil servant in exercise of his powers under Section 23 of the Civil Servants Act, and (ii) whether the appointment of a civil servant can be regularised from a date earlier than the date from which the Federal Public Service Commission approves his name." 2. The facts given in the leave granting order with the slight modification that the •word petitioner has been substituted by the word appellant are as under:- "The appellant was appointed as Assistant Educational Adviser in Grade 18 on the recommendation of Federal Public Service Commission and he assumed his duties on 14.7.1974. The respondents No.3 to 8 were. serving in different-capacities in different Provinces. They were brought on deputation to the Ministry of Education against posts of Assistant Educational Advisers, By different notifications, they were absorbed retrospectively with effect from 28.12.1974. The table below shows their particulars of service: NAME DATE OF DEPUTATION DATE OF ABSORPTION 'DATE OF NOTIFICATION FOR ABSORPTION (1) (2) (3) (4) Mr. Abdul Aziz Memon 6.11.1972 28.12.1974 3.3.1.975 Mr. Sahibzada Hasan 30.1.1973 28.12.1974 3.3.1975 Mr. M.Iqbal Gil Mr. Zafar Saeed 17.3.1973 22.3..1973 28.12.1974 28.12.1974 25.4.1975 28.12.1976 Mr. S.Maqbool Waris Mr. M. Qureshi 18.4.1973 3.11.1973 28.12.1974 28.12.1974 26.4.1975 26.4. 1975 On 3:7.1980 the Civil Servants Act 1973 was amended and Section 12-A was inserted therein. This Section authorises the President or his nominee to remove from service or revert to a tower post a civil servant who was appointed between the period 1.1.19'72 to 5.5'. 1977. The President constituted a Review Board to consider the cases of appointees of the aforesaid period. On 21.6.1984 a final seniority list of Assistant Educational Advisers was circulated wherein the appellant was shown junior to respondents No.3 to 8. He made a departmental representation which was not responded to. Therefore, he approached the Federal Service Tribunal. The learned Tribunal did not accept the appellant's contention that he was senior to respondents No. 3 to 8 and that the seniority list should be amended. -It dismissed the appeal of the appellant." 3. In dismissing the appeal, the Tribunal held that under Section 8 of the Civil Servants Act, no vested right could be claimed to a particular seniority recorded in the seniority list in respect of members of a service cadre or post. The respondent's stand before the Tribunal was that the seniority was assigned to them with the approval of the' President, and in this behalf enormous powers vested in him under Section 23 of the Act. This argument prevailed with the Tribunal. Reference was also made to Section 12-A" of the Act, which provides that when the appointment or promotion of a civil servant suffers from some deficiency in 'the minimum length of service prescribed for promotion or appointment to the higher grade, the President can direct that the seniority shall be counted from the date the civil servant completes the requisite minimum length of service. 4. On behalf of the appellant, the grounds urged before the Tribunal have been reiterated before fis. His learned Counsel's first submission was that the respondents were deputationists,. some of them were working' below grade 18 in their parent departments; they did not qualify to be absorbed in the Ministry of Education of the' Federal Government, much less to be regularized with retrospective effect, prior to the date on which .the Federal Public Service Commission accorded approval to their retention in the Federal Government. It has also been urged that in exercise of his executive authority under Section 23 of the -Act, the President had to act within limits of service laws and could not pass an order in favour of the respondents conferring a seniority on them retrospectively, prejudicial to the interest of the appellant. The . contention was that the order made, in pursuance of powers under Section 23 should not be such an order as may cause injury to some other civil servants. In support of this submission reliance was placed on Muhammad Iqbal Khokhar and 3 others Vs. The Government of the Punjab, (P.L.D. 1991 S.C. 35). It was further contended that Section 23 did not confer authority on the President to pass an order in favour of a group of civil servants and that, too, adverse to the interest of another civil servant.' 5. We have gone through the record to weigh these arguments. It is manifest from the record before us that respondents No.3, 5 & 6 were ^absorbed in the Ministry of Education in the year 1974 in Grade 18 with the approval of the Minister of State for the Establishment Division, who was the competent authority. Likewise, respondents No.4, 7. & 8 were also absorbed in the Ministry with the approval of the competent authority. Their cases were examined by the Review Board under Section 12-A of the Civil Servants Act, 1973, and then referred to the President, who on 6.12.1980 accorded his approval to their absorption in the Ministry of Education and grant of seniority from the dates reflected in the seniority list. The Federal Public Service Commission also approved their retention in the Ministry. The appellant never raised any objection at the relevant time against the respondents' absorption, which attained finality. The seniority list has to be prepared on the strength of that record and was consequential in character. In the precedent relied upon by the appellant the power of | the Governor under Section 22 of the Punjab Civil Servants Act, 1974, has been dealt with. This'section has been couched in the language similar to that of Section 23 ibid, but the rule laid down in the precedent case to the effect that seniority cannot be conferred retrsopectively on a civil servant, by the Governor detrimental to the interest of another civil servant is founded on Section 7, which does not say that-the seniority ' shall not be a vested right. On the other hand, Section 8 of Civil Servants Act, 1973, expressly provides so. The seniority being not a vested right conferment of seniority on the respondents with effect from the dates of their induction under the orders of the President is not violative of any right of the appellant-granted by the Civil Servants Act governing the terms and conditions of his service. Under Section 23 the President has the power to pass the order fixing the respondents,' seniority from the dates of their 1 induction in the Ministry of Education. The order made by the President is within the ambit of his authority. A reference in this connection may be made to Jahangir Mirza, Senior Superintendent of Police, Lahore, and another Vs. Government of Paksitan, through Secretary Establishment Divison and others (P.L.D. 1990, S.C. 1013), and its relevant.portion from page 1032 is reproduced"below:- "In the absence of seniority being a vested right, the rule making authority or the appointing authority could for sufficient reasons disturb it. In the present case this was expressly done in the case of Police Officers, when the President formally approved of the principle that the Officers of the Armed Forces inducted into the Police Service of Pakistan shall have seniority on regularisation from the date of their induction and not from the date of regularization. He was competent to pass such an order and having done so, the respondents shall benefit from it if from no other provision and or principle noticed above." As regards the other objection, we find that each respondent had his own individual case, but while dealing with these cases instead of their segregation, a consolidated summary in accordance with the secretariat practice was put up before the President, to which he accorded his sanction. Such an exercise of powers is not open to any valid criticism. The order of the Tribunal does not suffer from any illegality. We entirely agree with the view taken by the Tribunal. There is no merit in this appeal, which is hereby dismissed, but the parties are left to bear their own costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 164 PLJ 1993 SC 164 [Appellate Jurisdiction] Present: ABDUL QADEER CHAUDHRY, MUHAMMAD RAFIQ TARAR and WALI MUHAMMAD KHAN, JJ GENERAL MANAGER, NATIONAL RADIO TELECOMMUNICATION CORPORATION, HARIPUR — Appellant versus MUHAMMAD ASLAM and 2 others — Respondents Civil Appeal No.207 of 1990, dismissed on 1.8.1992. [On appeal from judgment dated 23.10.1989, of Peshawar High Court, in W.P.No.519, of 1986] (i) Back Benefits Employee of N.R.T. Corporation — Misconduct by — Dismissal from service of— Acceptance of grievance petition of respondent No.l — Challenge to — Whether respondent No. 1 was entitled to back benefits — Question of -- There is nothing on record to show that respondent No. 1 was not doing any job after his services were terminated — Held: Respondent No. 1 is not entitled to back benefits. [Pp 167 & 168 ]C & D PLJ 1990 SC 373 and 1992 PLC 415 ref. PLJ 1992 SC 33 rel. (ii) Re-instatement Employee of N.R.T. Corporation— Misconduct by -- Dismissal from service of — Acceptance of grievance petition of respondent No.l — Challenge to — Mere acceptance of legal dues by an employee doe not amount to waiver so as to stop him from challenging order of dismissal — Such remedy cannot be denied to him if charge of misconduct has not been established — Jurisdiction of courts could not be taken away on plea that after payment had been received by a worker, he is no more an aggrieved person — There is concurrent finding by all Courts that charge of mis-conduct has not been established — Held: Respondent No. 1 was an aggrieved person and could challenge his dismissal order inspite of fact that he had received all his dues — Held further: Order of re-instatement passed by High Court, is legal and proper. [Pp 166 & 167 ]A&B (PLJ 1985 Lahore 121 (DB) ref. Mr. Muhammad Afzal Siddiqui, Advocate, Supreme Court, with Mr. Ejaz Muhammad Khan, AOR for Appellant. Mr.Munir Peracha, Advocate, Supreme Court for Respondent No. 1. Date of hearing: 23.6.1992. JUDGMENT Abdul Qadeer Chaudhry, J.- This appeal by leave of the Court is directed against the judgment of the High Court dated 23.10.1989. 2. The facts of the case are that the respondent No. 1 was employed as peon in the Appellant's Corporation. On 8.8.1985 on his application he got issued a-gate pass from the Sales Officer in connection with the purchase of two pieces of chip board stands at a cost of Rs.5/- each. According to the appellant instead of taking out chip board stands he fraudulently misused the said gate pass and took with him two pieces of introductory gates of semi round shape made of iron angle board and wood. He was detected and caught red handed at the main gate by the security staff on duty. He was served with a show cause notice on 11.8.1985. The respondent denied the charge. A departmental inquiry was held: The Inquiry Officer in his report dated 17.8.1985 held the .respondent guilty of mis-conduct. On 18.8.1985 the respondent No.l was dismissed from service on the charge of mis-conduct. On 21.8.1985, the respondent No.l asked for clearance of his entire service dues. He was paid all his service dues on 22.8.1985. 3. After serving a grievance notice, the respondent approached the Labour Court under Section 25-A of the I.R.O. on 16.10.L985. The Labour Court conducted the inquiry and vide order dated 10.3.1986 held that the respondent No.l could not be saddled with mala fide intention of defrauding the company. However, since he had received his service dues without any protest, he was not entitled to re-instatement. 4. The respondent No.l filed an appeal before the N.W.F.P. Appellate Tribunal against the order of Labour Court. The appellant also filed cross objections. By order dated 5.5.1986, the learned Appellate Tribunal dismissed the appeal of resopondent No. 1 and upheld findings of the Labour Court on both the counts. It was held by the Appellate Tribunal that the mis-conduct was not proved and as the respondent had eceived all his dues he was not an aggrieved person. It was specifically held by the Appellate Tribunal "under these circumstances where was the misconduct which the. appellant committed." 5. The Labour Court as well as Labour Appellate Tribunal in refusing the relief to the respondent relied on some precedents. As he was not reinstated, the respondent No. 1 challenged these orders before the High Court in writ petition. The High Court followed Climax Engineering Co., Ltd. vs. Shabib Ahmad etc. [PLJ 1985 Lahore 121 (DB)] and took a different view. Leave was granted to consider; whether the view taken by.the High Court is correct? and also to consider the question whether the respondent' dismissal from service was not for serious(?) reasons as against the finding of the lower Courts that the charge against the respondent was baseless and for some petty matters. 7. We have heard the learned counsel for the parties. As regrds the merits of the E. case, the entire, evidence has been read by the learned counsel for the parties. P.W.2 Dr. Hamid ul Haq has deposed that he had submitted an application on" 7.8.1985 for issuing of board. He directed the petitioner, as the board was ready for delivery at Factory Carpentary shop, he should collect the same after getting gate pass. The Inquiry Officer and the witnesses have admitted that Dr. Hamid ul Haq had applied for the board. R.W.I has also admitted that the respondent told him that the board was ment for Dr. Hamid ul Ha.q. Similar concessions were made by the other witnesses. The Labour Court, the Appellate Tribunal and the High Court have concurrently recorded a finding of fact that there was no misconduct.- 8. The Labour Court and the Tribunal on the basis of some judgments have held that as the respondent No.l had received all his dues without any protest, therefore he was not .entitled to the relief of re-instatement. However, the High Court in the Constitution jurisdiction set-aside such finding and relied upon Climax Engineering Co. Ltd. Gujranwala [PLJ 1985 Lahore 121 (DB)] wherein it has been observed "that it may be Correct that when an employee's services are terminated and he accepts all his dues in final settlement of the dispute between him and his employer and virtually says goodbye to his employer, he accepts the termination of his service. However, it will be entirely different if an employee's services are terminated and he fs handed over the dues which he had earned while serving. He has the. right to accept the payment as he had served". This controversy was considered in a number of cases. Reference may be made to; 1982 P.L.C. 844 (Mrs. Shah Jahan vs. M/s.Pfizer Laboratory Ltd.) 1984 P.L.C. 359 (Ghulam Nabi vs. Mis. Siemens Pakistan Engineering Co.LHR). 1984 P.L.C. 786 (Muhammad Pervaiz vs. M/s.,Exon Chemicals (Oak) Ltd.) 1985 P.L.C. lQ72(Baluchistan Glass Ltd. V. Niaz Muhammad & others.) 1973 P.L.C. 297 (Mirza Majeed Baig etc. vs. M/s. Futahallv Chemical Ld. etc.) 1983 P.L.C. 210 (Rahman vs. Sindh Labour Appellate Trib&ttrtt Karachi.) 9. Mere acceptance of legal dues by an employee does not amount to waiver so as to stop him from challenging the order of dismissal. Such remedy cannot be denied to him if the charge of misconduct has not been established. In case order of termination is held to be mala fide or the charge of misconduct has not been proved, the payment of entire dues will not disentitle an employee to seek further relief of re-instatement from the Court. It cannot be accepted as a rule in each and every case that receipt of dues would-debar an employee to approach the Labour Court for the redress of his grievance. The law has provided a forum to settle the dispute between an employer and employee including the question of misconduct. The jurisdiction of the Courts could not be taken away on the plea that after the payment had been received by a worker he is no more an aggrieved person. It is always a question of fact to be determined on the basis of record whether an employee has accepted his termination and severed his relationship with the employer. After termination of his service, out of free will, he accepted all his dues as full and final settlement of the dispute. By this act the employee has dis-continued his connection with his employer for good. After severence of such relationship there is nothing to be adjudicated upon by the Labour Court as relationship of the parties as employer and employee has ceased to exist. 10. In the present(case)there is concurrent finding by all the Courts that the charge of mis-conduct has not been established. Therefore the respondent was an aggrieved person and he could challenge his dismissal order in spite of the fact that he had received all his dues. The learned counsel for the appellant has referred to certain pieces of evidence to show that the mis-conduct of the respondent has been established. The respondent admitted that he had applied for chip, board. 'He was granted pass for removing the chip board. The application of Dr. Hamid ul Haq was still under process. No sanction had been made by the authorities in his favour. No pass was issued to Dr. Hamid ul Haq for taking out the board. The report of the Inquiry Officer is based on evidence and there is clear mis-reading of evidence by all the Courts below. There may be two possible vie\ys of the matter but that is not sufficient for interference by this Court, because the evidence has been appreciated by the Courts and a decision has been recorded against the appellant, this Court will not re-evaluate the evidence. The Courts have recorded a finding of fact in favour of the respondent. The order of re-instatement passed by the High Court in favour of the respondent is legal and proper. . 11. The next question arises whether in the circumstances of the present case, the respondent is entitled to back benefits. This Court in 1992 P.L.C. 415 (National Bank of Pak. etc. vs.Pb. Appellate Tribunal and others) has observed "whether order of dismissal or removal had been set-aside un-conditionally back benefits have to be paid." In P.L.J. 1990 S.C. 373 (Qadeer Ahmad Vs. Punjab Labour Appellate Tribunal Lahore etc.) it has been observed in para 12. of the judgment as under: "As regads the question of entitlement to back benefits, the established proposition is ( that where the order of dismissal or removal has been setaside un-conditionally, found to-be without jurisdiction and uncalled for, necessarily the back benefits had 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. -Where fiill relief is not granted, the proper course in the absence of express order to that effect is to seek appropriate redress either under the Industrial Relations Ordinance or under the Civil Servants Act, as the 'case may be. Where, however, the order' of reinstatement is conditional as was in the case of the appellant, that an inquiry could still be made into his conduct and his conduct was considered such as to call for a departmental inquiry, then the entitlement with regard to back benefits had necessarily to wait till the final determination with regard to his conduct. If he was found at fault then the competent authority could justifiably deny him part of the back benefits. Mere setting aside of the order of dismissal, irrespective of whether it is set-aside conditionally or un-conditionally would not, as claimed, by the appellant entitle the affected functionary to claim arrears of pay and back benefits. Similarly the continuance of the inquiry on the same charges would also dis-entitle him, till the conclusion of the inquiry and the determination of the responsibility to back benefits." 12. The matter will not end here because further question is to be examined whether the respondent was engaged in some gainful employment during this period. This Court in PLJ 1992 SC 33 (Muhammad Bashir etc. vs. Chairman Punjab Labour Appellate Tribunal, Lahore etc.) has observed as under:- "However, following two principles kre established; (a) that back benefits do not automatically follow the order of reinstatement 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 reinstatement thereto, subject to the proviso that the workman has asserted at least orally, in the first instance, that he was (not) gainfully emplyed 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 bat to compensate him for his remaining jobless on account of being illegally removed from service." 13. There is nothing on record to show that the respondent was not doing any job after his services were terminated. As the respondent has not said a word about it, the appellant was not obliged to lead any evidence in rebuttal. Keeping in view the above facts and principle laid down by this Court in Muhammad Bashir's case, the respondent is not entitled to back benefits. With this modification (in) the order of the High Court, this appeal is dismissed with no order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 169 PLJ 1993 SC 169 [Appellate Jurisdiction] Present: SAIDUZZAMAN SIDDIQUI, WALI MUHAMMAD KHAN AND MAULANA MUHAMMAD TAQI USMANI, JJ. MUHAMMAD NAWAZ -- Appellant versus MUHAMMAD ASLAM and 7 others -- Respondents Criminal Appeal No.i6-S of 1989, dismissed on 17.10.1992 [On appeal from judgment of Federal Shariat Court, dated 31-1-1988, passed in Shariat Revision No.I/L of 1988]. Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII) of 1979) S.14 read with Section 8 and Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Section 10 - Zina — Offence of - Acquittal of respondents 1 to 7 — Challenge to — Procedure of lian provided in Section 14 is governed by Section 8 of Ordinance, and should be undertaken only on demand of wife against whom charge of Zina has been levelled — Although, in this case, wife did not lodge complaint, yet neither respondent No.6 (wife) nor appellant (husband) raised any objection when trial court took a decision to undertake procedure of lian — Both of them fully participated in procedure with their free will — Husband was not compelled to swear in 'lian — Since previous marriage between respondent No.6 and appellant is admitted and divorce was not proved, trial court was justified in holding that marriage was intact — Procedure of lian was undertaken during subsistence of marriage and not after divorce — There is no evidence to prove Zina against respondent No.6 or her abduction by respondents — Held: Acquittal recorded by trial court and affirmed by Federal Shariat Court, is fully justified — Appeal dismissed. [Pp 171&172] A t B,C&D Mr. Muhammad Munir Piracha, Advocate, Supreme Court, and Mr. Tanvir Ahmad, AOR (absent) for Appellant. Ch. Muhammad Akram, Advocate, Supreme Court, and Ch. Akhtar All, AOR for Respondent No. 1. Raja A. Ghafoor, AOR for State. Date of hearing: 17-10-1992. JUDGMENT Maulana Muhammad Taqi Usmani, J.- This is an appeal against the acquittal . )f respondents Nos. 1 to 7 recorded by the learned Additional Sessions Judge, Mianwali, vide his judgment dated 8-7-1987 and affirmed by the Federal Shariat Court on 31-1-1988. 2. It is admitted by both the parties that Mst. Amiran Bano (Respondent No. 6) was originally married to Muhammad Nawaz, the appellant in this case. It is the case of the prosecution that she was enticed away by respondents Nos.l to 5 (Muhammad Aslam, Fateb Muhammad, Akbar Khan, Sher Zaman and Amir Khan). It was also alleged by the prosecution that Maulvi Abdul Khaliq, respondent No.7 performed the Nikah of Msr. Amiran Bano with Muhammad Aslam, respondent No.l during the subsistence of her marriage with the appellant. The allegation against Muhammad Aslam, respondent was that he had enticed away Mst, Amiran Bano and committed illegal sexual intercourse with her. On the basis of the FIR Ex PC lodged by the appellant on 8/2/1985 a challan was submitted against Muhammad Aslam under Section 10 of the Offence of Zina (Enforcement of Hudood).Ordinance VII, 1979 and also under Section 16 of the same Ordinance. The other accused persons were charged under Section 16 of the Ordinance as well as under sections 380, 411 and 109 PPC. 3. During the course of arguments before the learned trial Court it was found that Muhammad Nawaz the appellant in this case, who is husband of the accused Mst. Amiran Bano, has levelled a charge of Zina against his wife. The learned trial Court felt that this fact attracted the provisions of Section 14 of the Offence of Qazf (Enforcement of Hudood) Ordinance, 1979. He therefore conducted the procedure of lian provided under Section 14 of the Qazf Ordinance and after going through this procedure dissolved the marriage and acquitted all the respondents. The learned Federal Shariat Court did not find any infirmity in the finding of the learned trial Court and dismissed the appeal of Muhammad Nawaz in limine. 4, Leave was granted in this case to examine: - (i) Whether this is a pre-requisite for conducting th^ procedure of lian that the wife demands her husband to undergo this procedure. (ii) Whether it is possible that the wife even after going through the procedure of lian be punished for committing any offence under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. We heard the learned counsel for the parties and have gone through the facts of the case with their assistance, 5. With regard to the first question on which leave was granted, we find that the Muslim jurists seem to be unanimous on the point that the procedure of lian can only be initiated on the demand of the wife. (See Ibn Qudamah, Al-Mughni V.9.P.23, Alamgiriah V.h P.516 and Shami, Radd-al-Muhtar V.2 P.637). This view has been adopted by the Offence of Qazf Ordinance also in Section 8 which reads as follows:- "8. Who can file a complaint. No proceeding under this Ordinance shall be initiated except on a report made to the police or a complaint lodged in a Court by the following, namely:- . (a) if the person in respect of whom the qazf has been committed be alive, that person, or any person authorised by him; or (b) if the person in respect of whom the qaif has been committed be dead, any of the ascendants or descendants of the person.' The procedure of lian is provided in Section 14 of the Qazf Ordinance ant) is, therefore, governed by the condition laid down in Section 8. Thus it is clear that the procedure of lian should be undertaken only on the demand of the wife against whom the charge ofZina has been levelled by her husband. 6. In the instant case although there is nothing on the record to show that the wife had lodged a complaint or any application for lian before the trial Court, yet i! is evident that when the learned trial Court took a decision to undertake the procedure of lian, neither Mst. Amiran Bano nor the appellant raised any objection to it. Rather, both of them fully participated in the procedure with their free will. The practical effect of the legal requirement of a 'demand' from the woman's side is that the husband cannot be compelled to undergo the procedure of lian unless the wife has asked the Court to conduct the procedure. There is no indication in the instant case to show that the husband was compelled to swear in lian.- Both the parties were duly assisted by their counsel who are supposed to know the legal requirements and consequences of the procedure. If the appellant had any objection to the lian proceedings, he could easily raise the same before the commencement of lian. But" now when the procedure has been accomplished without any objection and the marriage has been dissolved, the lian undertaken by the parties cannot be nullified at this stage on this technical ground alone. . • 7. The next point raised by the learned counsel for the appellant was that the procedure of lian can be undertaken only when the husband levels a charge of zina against her wife during the subsistence of his marriage with her. In the present case 'Mst. Amiran Bano has claimed that she was divorced by the appellant before he levelled the charge of Zina against her. As Mst. Amiran Bano did not admit to be the wife of the appellant at the time of lian, the procedure of lian was not justified. 8. We paid due attention to this point, but it is admitted by the learned counsel also that Mst. Amiran Bano did not lead any evidence to prove the alleged divorce. Conversely, the Chairman of the Union Council appeared to state that he did not receive any notice of Talaq from the appellant. As the previous marriage between Mst. Amiran Bano and Muhammad Nawaz is admitted by both the parties, the onus to prove the divorce was shifted to Mst. Amiran Bano. Since she was unable to prove it, the learned- trial Court was justified to hold that such divorce was not given and the marriage between the parties was intact. The procedure of lian is thus undertaken during the subsistence of the marriage and not after divorce. The participation of Mst. Amiran Bano in the procedure of lian, by itself, shows that she admitted her inability to prove the divorce. 9. The second question for which leave was granted is whether after the procedure of lian, a wife can be punished in tazir for the offence of Zina. Before going into this legal question we asked the learned counsel for the appellant whether the prosecution has led any evidence of Zina against Mst. Amiran Bano. The learned counsel fairly conceded that there is no such evidence available on the record. The only evidence against her is that she went to the house of Sher Zaman, her uncle, and lived with him for quite a long time where his son Muhammad Aslam was also present. It is obvious) that this fact alone cannot prove the offence of Zina against Mst. Amiran Bano. There is also no reliable evidence on the record to prove the offence of "taking or enticing away" Mst. Amiran Bano against the respondents. Thus, the acquittal recorded by the trial Court and affirmed by the Federal Shariat Court is fully justified on the basis of the facts only, and it is not necessary, with reference to the facts of the present case, to go into the legal question whether a punishment of tazir under the Zina Ordinance, 1979 can be awarded to a wife after the procedure of Han. That question may be examined in some other suitable case. 10. For these reasons the appeal is found to be without force and is hereby dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 172 PLJ 1993 SC 172 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH CJ and WALI MUHAMMAD KHAN, J. ALLAH WASAYA and 5 others -- Appellants versus IRSHAD AHMAD and 4 others -- Respondents Civil Appeal No. 114 of 1992, dismissed on 3-6-1992 (approved for reporting on 17-8- 1992) [On appeal from Judgment/Order, dated 25-5-1991, of Lahore High Court, Multan Bench, passed in W.P.No. 126 of 1991] Civil Procedure Code, 1908 (V of 1908) S.I2(2) — Pre-emption — Suit for — Decree passed in — Whether decree was obtained through fraud — Question of — Burden of proving fraud lay heavily on appellants - Plaintiffs/decree holders neither mis-stated any fact nor concealed anything from Court to obtain decree — Non-bringing on record heirs of deceased Hassan Bakhsh, defendant, cannot amount to fraud — Held: Impugned decree not being based on compromise but having been passed after contest, could not be legally assailed under Section 12 (2) of C.P.C - Held further: Judgment of Additional. District Judge was perfectly legal and was rightly maintained-by High Court - Appeal dismissed. [P» 175 ] A&B. Mr. Muhammad Aqil Mirza, Advocate, Supreme Court, and Mr. M.A. Qureshi, AOR (absent) for Appellants. Ranci M. Sarwar, Advocate, Supreme Court, and Mr. S. Abul Aasim jaferi, AOR a (absent) for Respondents 1 to 4. a Date of hearing: 3-6-1992. JUDGMENT Wali Muhammad Khan, J. - Allah Wasaya and others, appellants herein, through leave of the Court, have called in question the judgment dated 25-5-1991 passed by a learned Single Judge of the Lahore High Court, Multan Bench, whereby their writ petition No. 126/91 challenging the judgment of the Additional District Judge, Multan dated 24-4-1991, was dismissed in limine. The leave granting order is as follows: Leave to appeal is granted to examine whether it was not on facts admittedly a case falling u/s 12(2) CPC as held by High Court on account of following facts: - i) The date of death of Hassan Bux 29.12.1982 ii) His signatures on power of attorney 08.12.1985 iii) . Representation of heirs of Hassan Bux as their submissions to compromise. Security 5,000/-. Status quo maintained."The facts of the case, briefly stated, are that Khuda Bakhsh, respondent No.4 herein; Hassan Bakhsh, predecessor-in-interest of appellants 1 to 5; and Mukhtar Ahmad, appellant No.6; purchased land measuring 54 kanals 3 marlas vide mutation No.347 attested on 30-8-1980 for a sum of Rs.54,000/- from one Hafeez Ahmad which gave rise to a pre-emption suit filed by Irshad Ahmad, Mst. Faiz Ilahi and Sultan Ahmad, respondents 1 to 3 herein. Mukhtar Ahmad was shown as minor and Khuda Bakhsh was appointed as guardian ad [item for him. The suit was contested by the defendants and they in their written statement denied the superior right of pre-emption of die plaintiffs/pre-ernptors and claimed to have purchased the suit land for a sum of Rs.82,000/-. During the course of proceedings an offer was made by the plaintiffs/pre-emptors that if Khuda Bakhsh defendant No. 1 states the exact amount spent by him on the purchase of the suit jand through oath on the Holy Quran, they are ready to accept the'same as sale consideration. Khuda Bakhsh defendant No.l accepted the offer and by taking oath on the Holy Quran stated that the defendants had spent Rs.81,700/- on the acquisition of the suit land through purchase. He also accepted the superior right of pre-emption of the plaintiffs/pre-emptors on account of their being collaterals of the vendors. On the basis of this oath the suit of the plaintiffs/pre-emptors was decreed vide judgment and decree dated 18-5-1986 in lieu of Rs.81,700/-. Allah Wasaya and others, appellants herein, filed an application under Section 12(2) of the Civil Procedure Code on 30-9-1987 challenging the judgment and decree dated 18-5-1986 on the ground of fraud and collusion on the plea that specific permission of the Court on behalf of the minor was not secured according to law and that Hassan Bakhsh defendant having already died prior to the pffer of oath and his heirs having not been brought on the record the decree obtained on the strength of oath was as a result of collusion between the plaintiffs/pre-emptors and Khuda Bakhsh defendant/respondent. This application was resisted, necessary evidence led pro and contra on the allegation made by the parties recorded and the learned Civil Judge vide his judgment and decree dated 13-6-1990 accepted the application under Section 12(2) CPC and set aside the decree passed by him on 18-5-1986 and ordered the de-novo trial of the suit after bringing in the legal representatives of Hassan Bakhsh deceased/defendant on the record. This was challenged by the plaintiffs/decree holders hi the appellate Court through a revision petition which was accepted vide judgment dated 24-4-1991 and by setting aside the order dated 13-6-1990, and the original decree for possession through pre-emption dated 18-5-1986 was restored. Allah Wasaya and others, appellants herein, having no other legal remedy invoked the constitutional jurisdiction of the High Court for setting aside the revisional order of the Additional District Judge but with no success vide the impugned order dated 25-5-1991. Hence the instant appeal through leave of the Court. We have heard Mr. Muhammad Aqil Mirza, Advocate, for the appellants, Rana Muhammad Sarwar, Advocate, for the respondents; and have perused the record of the case. As discussed above, Mukhtar Ahmad appellant No.6 was shown as minor in the heading of the'plaint with Khuda Bakhsh defendant No.l as guardian ad litem for him and- nobody on behalf of the minor came forward to challenge the apppintment of Khuda Bakhsh as guardian of Mukhtar Ahmed on any ground whatsoever or that he had any conflicting interest with that of the minor. Hassan Bakhsh defendant No.2 was undisputedly alive at the time of the institution of the suit and according to the version of the appellants, he -had appointed a counsel to defend him in suit. On his death during the pendency of the suit, his heirs appellants 1 to 5 herein, were aware of the proceedings in the pre-emption suit filed by Irshad Ahmad and others, respondents 1 to 3 herein, and they ought to have participated in the further proceedings of the suit if they were not satisfied with the conduct of the suit by Khuda Bakhsh defendant/ respondent. . Under Order XXII Rule 3 the plaintiffs, no doubt, have to apply to bring on record the legal representatives of the deceased/defendant but their failure to do so is no longer fatal to the suit as under the amended provision even if the proceedings are continued against a dead person a decree can be passed against him notwithstanding his • death during the pendency of the suit. Consequently the non-impleadment of his legal representative could not legally hamper the progress of the suit. At the same time it was equally the responsibility of the heirs of the deceased/defendant Hassan Bakhsh to have brought the factum of his death to the notice of the Court and requested for bringing in his L.Rs. on the record. Their inaction in this respect can lead to the only conclusion that they had left the conduct of the case in the hands of Khuda Bakhsh co-vendee with them and were satisfied rather acquiesced in his performance. The plaintiffs/pre-emptors had 'based their claim on the ground of being collaterals of the vendor, khewatdar in the estate and khewatdar in the suit land. Defendant No. 1 was admittedly a khewatdar according to para 5 of the plaint but he had sunk with the co-vendees/defendants 2 and 3 who were strangers. In the written statement in para 3 of the preliminary objections defendant No.l alone claimed the superior right of pre-emption on account of being tenant of the suit land but it was not specifically pleaded in the written statement as to whether the other defendants/co-vendees had any right of pre-emption or not. The suit was filed on 30-7-1981 and the offer of oath was made on 18-5-1986 obviously much of the evidence must have been recorded in the meantime. It appears that the defendants/vendees were not seriously contesting the superior right of pre-emption of the plaintiffs/pre-emptors but wanted the refund of expenses like District Council fee and other allied charges incurred oh the finalisation of the sale transaction. To resolve this controversy the plaintiffs/preemptors wanted Khuda Bakhsh defendant No. 1 to take oath which he accepted. He also specifically stated while taking the oath that the plaintiffs have the superior right of pre­ emption being the collaterals of the vendor which was followed by the decree of the court. The appellants have challenged the decree passed by the competent court of law on the ground of fraud and collusion under Section 12(2) of the Civil Procedure Code and the burden heavily Say upon them to establish that the fraud had been practised by the decree holders on the Court in the obtaining of the impugned decree. Fraud means and includes, inter alia, the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; and the active concealment of a fact by one having knowledge or belief of the fact. In the instant case the plaintiffs/decree holders neither 'mis-stated any fact nor concealed anying from the Court to obtain the impugned decree. There is not an iota of evidence to show that there was any collusion between Khuda Bakhsh defendant/co-vendee and the pre-emptors/decree holders rather they were at variance till the last moment so far as the sale consideration was concerned. As stated earlier, Mukhtar Ahmed appellant No.6 was duly shown as minor in the heading of the plaint and Khuda Bakhsh was appointed his guardian-ad-litem which was never objected to even by Mukhtar Ahmad himself when he attained majority as, according to his own admission, his mother had the knowledge of the suit. As regards the nonbringing of the heirs of Hassan Bakhsh deceased on record after his death during the pendency of the suit, their non-impleadment was not legally fatal for the progress of the suit and failure on the part of the plaintiffs/pre-emptors to apply for bringing on the record the heirs of the deceased Hassan Bakhsh, cannot amount to fraud. The impugned decree does not amount to a decree on the basis of compromise but it is a decree passed after contest by the Court in view of the admissions and confessions made by the respective parties and it could not be legally assailed through an application under Section 12(2) CPC. In view of what has been stated above, the judgment of the learned Additional District Judge, Multan dated 24-4-1991 was perfectly legal and was rightly maintained by the High Court through the impugned order. .Finding no merit in the instant appeal, the same is hereby dismissed with no order as to costs. (MBC) (Approved for reporting) Appeal dismissed

PLJ 1993 SC 176 [Appellate Jurisdiction] PLJ 1993 SC 176 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH CJ AND WALI MUHAMMAD KHAN.J. Khamada AINUDDIN KHAN (DECEASED) through his L.Rs.and others --Appellants versus FEROZE KHAN and others Respondents Civil Appeal No, 14-P or' 1991, accepted on 5.8.1992. (On appeal from judgment/order dated 14.4.1990, of Peshawar High Court, passed in C.R.No. 140 of 1989.) Civil Procedure Code, 1908 (V of 1908) O.XXI R.35 — Decree - Execution of - Refusal of - Challenge to — Under Order XXI of C.P.C., a decree-holder has oniy to apply to court which passed decree for its execution, and executing court is bound to execute decree and cannot find fault with it on mere technicalities in order to deprive him of fruits of decree — Disputed area was sufficiently described in plaint and there should be no difficulty in location thereof by executing agency on spot — Fresh settlement in interregnum resulting in change in khasra numbers could not efface decree at all — Held: Executing court has fallen into error in refusing to execute decree and exercise proper jurisdiction vested in it — Held further: Higher forums too, have tailed to consider legal and factual aspect of case — Appeal accepted. [Pp 181 & 182JA&B 1970 SCMR 253 and AIR 1960 Patna 184 rel. Mian Younas Shah, Senior Advocate, Supreme Court, and Haji Bashir Ahmad, AOR (absent) for Appellants. Mr. N.M. Khan, Advocate, Supreme Court, and Mian "Shakirullah Jan AOR (absent) for Respondents 1 to 5. Nemo for other Respondents. Date of hearing: 31.5.1992. JUDGMENT Wali Muhammad Khan, J. - The instant appeal by the heirs of Khanzada Ainuddin Khan and others, through leave of the Court, is directed against the judgment of the Peshawar High Court dated 14.4.1990, whereby their revision petiton No. 140/89 against the judgment of the District Judge dated 22.2.1989 and that of the Senior Civil Judge dated 3.6.1986, accepting the objection petition of Feroz Khan and others, judgment debtors, respondents herein, to the execution of the possessory decree passed in favour of the-appellants and, in consequence, refusing to execute the decree, was dismissed. The leave granting order is as follows:- "Leave to appeal is granted in view of United Bank of India Ltd. Versus Azirannessa Bewa alias Azizannessa Bewa (PLD 1965 SC 274), Ganesh V. Sri Ram Lalaji Mahraj Birajman Mandir and others (AIR 1973 Allahabad 116) and Smt. Lalmuni Devi arid others versus Shiv Shankar Tiwary and others (AIR 1980 Patna 184) requiring the executing court to identify the property rather than refuse execution." The unfortunate and chequered history of the dispute leading to the filing of the instant appeal is that as far back as 1970 a decree for possession of 8 kothas with 2 verandahs and courtyard and additional two kothas with verandahs over an area of 11 kanals, part: khasra No. 1741, situated in the estate of Darband was passed in favour of the appellants against Feroz Khan and others respondents. It is evident from, the persual of the judicial file of case No.269/1 decided on the same date viz. 28.1.1970 that another suit was filed by Feroz Khan and others respondents herein for declaration that they were owners of land comprised in khasra No. 1694, 1703, 1697 and 1707 situated in the same estate; that the entries of the revenue record whereby the appellants were shown owners thereof were wrong and ineffective against their rights; that they were not entitled to claim produce from them; that the suit filed by them for the recovery of arrears of rent and their ejectment in the revenue court was not entertainable and that fhe filing of the said suit was necessitated on account of the direction made by the revenue court to them for the establishment of their title. The suit after contest was dismissed and the appellants declared .as owners of the said property and the possession of the respondents thereon as tenants-at-will on their behalf.It is thus apparent that the • respondents were tenanting the agricultural land of the appellants detailed above as tenants-at-will and were residing in the disputed property. Since their title was denied in the revenue court, the necessity to file the suit for possession of the residential area arose. The respondents during the course of the proceedings of the present suit No.485/1 of 1969 in which the impugend decree was passed did. not deny their possession over the suit kothas nor raised the objection that the description of the suit property is ambiguous or that they were in possession of larger area in the said khasra numbers rather they, admitted their possession over the suit area and raised the plea of prescriptive title thereto. Copies of the revenue record right from 1954-55 were brought on the record which were duly referred to in the judgment of the trial Court and the respondents were held in possession but permissive on behalf of the appellants being their tenants cultivating their agricultural land.The appellants/decree holders filed execution application before the executing Court for delivering the physical possesstion of the decreed property to them by ejecting the respondents/judgment debtors therefrom. To thwart the process of execution the judgment debtors/respondents herein filed an objection petition under Section 151 of the Civil Procedure Code alleging therein that the decreed area being part of. a bigger area of 382 kanals 2 marlas of khasra No. 1741 was not capable of execution as the Khasra number has been sub-divided into several parts and fallen in the possession of various persons including the judgment debtors and that the decreed area cannot be located at the spot. The learned executing Court took congnizance of this objection petition and. embarked upon an inquiry into it. The same was hotly contested by the decree holders, and the learned executing Court by accepting this objection petition dismissed the execution application vide its order dated 3.6.1986. The appeal and revision filed against it could not succeed, hence the instant appeal through leave of the Court. We have heard Mian Younas Shah, Senior Advocate, for the appellants; Mr. N.M.Khan, Advocate, for the respondents; and have perused the record of the case. It is worthwhile to mention at the outset that the judgment debtors/respondents adopted all possible methods allowed under the law to defeat the execution of the decree passed against them by a competent Court of law. First of all, they filed an application under Section 12(2) CPC that the decree dated 28.1.1970 in suit No.485/1 was obtained through fraud and collusion and was without jurisdiction, which was dismissed by the trial Court on 3.6.1986. However, appeal against it was accepted vide order dated 10.1.1987 and the case remanded for decision on merits to the trial Court.The High Court, however, annulled the judgment of the appellate Court and remitted the apeal back to the District Judge for decision, who in his turn, dismissed the appeal on 22.2.1989 and the revision petition filed against it was also dismissed vide order dated 14.4.1990. The execution proceedings filed against the decree remained stayed. On its restoration the original file was summoned which took sufficient long time and ultimately it was discovered that the file had been lost. The judgment debtors raised an objection that the execution proceedings were time barred but the same did not find favour with the executing Court as the execution had been filed within the statutory period and had been stayed under the orders of the competent Court of law. Warrant for the delivery of possession was issued by the executing Court on 10-10-1975, original available on page 10 of execution file No.45/10 of 1975, which was returned unexecuted, with the report of the concerned bailiff dated 28-10-1975 that the judgment debtors who were present on the spot were shown the warrant but they refused to deliver possession and hence requested for .police help. Another such warrant is available on page 20 of execution file No.37/6 whereby not only the delivery of possession was ordered but it was specifically mentioned therein that occupants of the property should be thrown out of the same. A copy of the warrant was also sent to the Patwari Halqa to assist the bailiff in the execution of the warrant and demarcation of the decreed property situated in khasra No. 1741. This warrant was also returned unexecuted with a report that the judgment debtors refused to vacate the property and that without police aid their eviction from the decreed property was not possible. The warrant is dated 1-10-1980 and the report of the process server is dated 23-10-1980. On both these occassions the judgment debtors never raised any objection that the property of which they were being dispossessed under the order of the executing Court was not the property in issue in litigation between them and decree holders or there is any variation in the area in suit. The executing court without any proper inquiry about the executibility or otherwise of the decree came to the conclusion on the bald allegation of the judgment debtors that the decree was not executable. Copies of the jamabandis of khasra No. 1741 of 1903-04, 1928-29 and 1971-72 had been placed on the record by the respondents. The'perusal thereof would show that khasra No. 1741 measuring 382 kanals 2 marlas was owned by the predecessor of the appellants. It appears that fresh settlement operations were carried out in which this khasra number was allotted fresh numbers, as per entries of khewat No. 1 of 1971-72 and sub-divided into several parts but the ownership has remained intact. No doubt, the respondents/judgment debtors also filed copy of Misl-i-Hqiqat 1971-72 of khewat No.54 with regard to their ownership property in which a negligible area of the khasra No. 1741 appears to have been amalgamated with their ownership property but by no stretch of imagination, it can be held that the aforesaid negligible portion amalgamated with the other area owned by the respondents, ceased to be the ownership of the decree holders. Since most of the area comprised in khasra No. 174! was unculturable, if a negligible portion thereof was amalgamated in the ownership area of the respondents, there is nothing unusual in it as in the settlement operations such changes do occur. However, it cannot benefit the respondents in any way and this change cannot hamper the delivery of possession 'of the decreed property to the appellants/decree holders in their favour prior to the settlement operation. Order XXI CPC exhaustively deals with the execution of decrees and orders and rule 10 thereof provides for application to the Court which passed the decree for the execution thereof. Rule 35 deals with the execution of decree for immovable property which is being reproduced in extenso for ready reference:- "35. Decree for immovable property. Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession." Rule 97 deals with resistance or obstruction in delivery of possession by third party and Rule 98 caters for eventualities of resistance or obstruction made by the judgment debtor himself. A dispute of some what similar nature came up for consideration before this Court in case Mst. Karma vs. Ghulam Murtaza (1970 S.C.M.R. 253) and it was observed: - "It is not disputed that the respondents have mentioned in the execution application the same survey numbers which were mentioned in the decree that was passed in teir favour. " The mere fact that the survey numbers have in the meanwhile changed on account of fresh survey cannot render the description of the property mentioned in the execution application as incorrect. Moreover, sub-rule (2) of Order XXI, rule 11, CPC in a case where a decree is passed for possession does not require to give the exact particulars of the property sought to be delivered. Under Subsection (j), it is only to be mentioned that the assistance of the Court is required by the delivery of any property sepecifically decreed. The respondents, in the execution application filed by them, have complied with this requirement." In a case of Indian jurisdiction Smt, Lalmuni Devi vs. Shiv Shanker Tiwary .I.R. 1960 Patna 184) it was concluded as follows:- "Mr. Lakshman Saran Sinha, appearing for the objectors, on the other hand, Contended that the executing court had no jurisdiction to take additional evidence d find out the properties in suit. I do not find any force in this contention of vlr. Sinha inasmuch as the executing court is certainly entitled in law to take ;uch steps to effect delivery of possession in terms of the decree under execution. "Such steps" would not amount to taking any additional evidence-in the matter but would amount simply to ascrertain and fix up the identity of the property in terms of the decree itself." In view of the aforementioned dictum of this Court and that of the Patna High Court coupled with the statutory provision of Order XXI CPC it is clear that the decree holder has only to apply to the Court which passed the decree for the execution of the decree and the executing Court is duty bound to execute the decree and cannot find fault with it on mere technicalities so as to drprive the decree holders of the fruits of the decree passed in their favour after protracted litigation. The disputed area comprising of kothas etc. was sufficiently described in the plaint as it was part of a definite khasra number and there should be no difficulty in the location thereof by the executing agency on the spot. The mere fact that in the interregnum fresh settlement took place resulting in the change in the khasra number or sub-division of the original khasra number into several parts could not efface the decree at all. As explained above, the impugned khasra number according to the settlement record 1971-72 is recorded as ownership of the appellants. The respondents/judgment debtors are not amongst the proprietary bod)' and as such whatever area is found to be in their possession out of the new khasra numbers shall be presumed to be the area decreed in favour of the appellants even if there be little -bit increase in the area which shall be presumed to be accretion to it after the passing of the decree out of khasra No. 1741 referred to above. Even in these proceedings the judgment debtors/respondents have not specifically denied their possession over part of khasra No. 1741 represented by new khasra number but they lave simply stated that'the decree is not executable because of subdivision of the suit khasra number. Since the judgment debtors/respondents were parties to the prolonged litigation and the only claim agitated by them was that of presecriptive title in which they failed, it behoved them to deliver the possession of the decreed property to the decree holders voluntarily on the spot, or at least assist the executing agency in locating the property so decreed. The executing Court ought to have issued process for delivery of possession to the decree holders and if any dispute had arisen on the spot regarding the identity of the property he could make proper inquiry into it, locate the property through evidence or appointment of local commission as it would have been a matter under Section 47 of the Civil Procedure Code relating to execution, discharge or satisfaction of the decree exclusively within its jurisdiction and as such it has fallen into error in refusing to execute the decree and exercise proper jurisdiction vested in it. The higher forums too, have failed to consider the above noted legal and factual aspect of the case. Resultantly, we accept this appeal with costs throughout, set aside the judgments and orders of the lower forums and remand the case back to the « executing Court for the execution of the decree in the light of the observations made above. The respondents shall pay Rs.50,000/- in gross in lieu of the taxed costs, to the appellants. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 181 PLJ 1993 SC 181 [Appellate Jurisdiction] Present: dr. nasim hasan shah and saleem akhtar, JJ. MUHAMMAD AMIN and three others—Appellants versus MUHAMMAD USMAN KHAN and 4 others—Respondents Civil Appeal No. 1086 of 1990, dismissed on 1-12-1992 (approved for reporting on 13-12-1992). Punjab Pre-emption Act, 1913 (I of 1913) S.21-A- Pre-emption— Suit for—Vendee-defendant—Improvement in status of— Could vendee resist pre-emptor's claim— Question of—Vendee of pre-empted sale continues to be vendee-defendant even if he transfers pre-empted property to some other person before or after filing of suit— Respondents 1 and 2 continued to be vendee-defendants within meaning of Section 21-A of Act and continued to avail of statutory right to protect their title to land obtained under sale by improving their status despite transfer of land to respondent No.5 through exchange- Held: Gift in favour of vendees stood unchallenged and as vendees had improved their status before institution of suit and their right of pre-emption had become at par with that of pre-emptor, they could resist pre-emptor's claim- Appeal dismissed. [Pp 183&184JA&B Ch. Muhammad Anwar Bhinder, Advocate, Supreme Court, and Mr. M. Sultan, AOR for appellants. Ch. Imdad All Khan Advocate, Supreme Court, and Mr. Tanveer Ahmad, AOR for respondents. Date of hearing: 1-12-1992. JUDGEMENT Nasim Hasan Shah, J.- This appeal, by leave of this Court, is directed against the order of the Lahore High Court dated 13-01-1988 dismissing the Civil Revision Petition filed by the appellants herein against the order of the Additional District Judge, Okara dated 24-11-1987. The facts of the case briefly are that respondents Nos. 3 & 4 sold 1756 kanals 19 marlas of land in Khatas Nos. 2,9/5,12,13/19 & 14/10 situate in village Sadpur, Tehsil Dipalpur, District Okara to respondents Nos. 1 & 2 for consideration of Rs. 1,75,000/-. The vendees on 13-10-1966 exchanged the said land with the land of Jamal Din, their father (respondent No.5 herein) in lieu of his land situated in estate Ran. However, on 13-11-1966, the respondents obtained some land through a gift from one Irshad Muhammad in Khata No. 13/9. Some days thereafter, on 5-12-1966, one Alawal Khan, the predecessor-in-interest of the appellants herein, filed a suit to pre-empt the sale dated 06-12-1965 made in favour of the respondents Nos. 1 & 2. The suit after contest was decreed in favour of Alawal Khan, but on appeal the learned Additional District Judge accepted the appeal in part on the ground that so far as the land situated in Khata No. 13/9 was concerned, respondents Nos. 1 & 2 had improved their title before institution of the suit and their right of pre-emption had become at par with that of the pre-emptor (who claimed his preferential right on the basis of being co-sharer of the land); hence they could resist the preemptor's claim in the land of Khata No. 13/9. In the result, the suit brought by the deceased plaintiff/pre-emptor Alawal Khan was decreed in favour of his legal representatives to the extent of 193 kanal& subject to payment of Rs. 18,848/- while it was dismissed with regard to 1563 kanals situate in Khata No. 13/19. The revision filed by the appellants herein having failed they have come before this Court in appeal, by its leave. The main contention of the learned counsel for the appellants Ch. Muhammad Anwar Bhindar is that though a vendee can improve his title before institution of the pre-emption suit, this advantage disappears on his alienating the property to a third person before the institution of pre-emption suit. Hence the respondents did not remain vendees of the land when the gift was made. In such circumstances the gift of the land could not improve their title and they cannot defeat the suit for pre­emption even if the gift was made before the institution of the suit.Ch. Imdad Ali Khan on behalf of the respondents in reply had submitted that no bar exists in law to a vendee to transfer his property by sale, exchange, gift etc. to another before or after the institution of the suit for pre-emption. The only consequence of his making such a transfer will be that any decree for pre-emption passed against the original vendee. Accordingly, he submits that the sale sought to be impeached in this case by the plaintiff was the one that was effected through a registered deed dated 06-12-1965. The vendees under this sale deed were respondents Nos. 1 & 2 herein. The subsequent exchange of the said land with Jamai Din, vide exchange deed dated 13-10-1966 was not material in so far as the suit of' pre-emption filed to impeach the sale dated 6-06-12-1965 is concerned because Jamal Din was not a party to the said sale dated 06-12-1965. The plaintiff/pre-emptor had, in fact, no cause of action against him on account of the sale affected on 06-12-1965. Since the suit filed by the pre-emptor sought to pre­empt only the sale dated 06-12-1965 and in this suit respondents Nos. 1 & 2 only were to be deemed the vendees, for the purposes of the pre-emption suit. This was because the exchange dated 13-10-1966 was a transaction distinct and separate from the sale deed dated 06-12-1965 and the vendors were not a party to this transaction of exchange, which was not pre-emptible as such. It is true that Jamal Din (respondent No.5) was added as a respondent to the proceedings, but the suit as regard him cannot be regarded as a suit for pre-emption. At best, the claim of the plaintiff against Jamal Din was for a declaration that the transaction of exchange was/subjected to the decree for pre-emption against the vendees and it was binding upon him, as successor-in-interest of the vendees. We find force in these submissions of Ch. Imdad Ali Khan. Section 21-A of Pre-emption Act 1913 lays down that- "Any improvement, otherwise than through inheritance or succession, made in the status of a vendee-defendant after the institution of a suit for pre-emption shall not effect the right of the pre-emptor plaintiff in such suit". The words "status of a vendee" in Section 21-A indicate that the vendee of the pre-empted sale continues to be the vendee-defendant even if he transfers the pre­ empted property to some other person before or after the filing of the suit. The reason being that the vendee even after the exchange has a vital interest to protect the sale in his favour from the attack of the pre-emptor, as he is bound to make [On appeal from common judgment, dated 25-6-1990, of Lahore High Court, passed in C.R. Nos.2603-D, 2604-D, 2605-D, 2606-D and 2607-D of 1989 respectively] t (i) Acquisition of land Land acquired for construction of road — Settlement of price through negotiation - - Un-utilized land - Return of —Whether para 100 of Financial Commissioner's Order No.28 was not applicable — Question of — Held: Answer to this question has been provided in proviso to para. 100 of Order which lays down that these orders apply equally to all lands taken up at any time for State purposes whether by private purchase or compulsory acquisition under any Act or procedure at any time in force. [P 191)A (ii) Acquisition of land Land acquired for construction of road-Un-utilized portion of land — Return of— Challenge to — No doubt, Government has option either to put land to auction or as a matter of grace, restore same to previous owner in terms of para. 100 of Order ~ It must follow that a previous owner cannot compel Government to restore un­ utilized land as a matter of right — However, discretion vested in Government is to be exercised fairly and reasonably and not arbitrarily or capriciously — In this case, competent authority decided to restore un-utilized land to previous owners, so much so, survey was carried out, amounts refundable were calculated and notices were issued to previous owners under para 100 of Order though not served — Held: There seems to be no prohibition for Government to utilize land for any other public purpose but appellants failed to demonstrate that they, in fact, needed suit land for any other Scheme duly approved by competent authority - Appeal disnussed. [pp m 192&193 ]C)D & E (iii) Acquisition of Land Land acquired for construction of road — Un-utilized land — Return of — Challenge to — Whether Para 100 of Financial Commissioner's Order No.28 is not applicable — Question of — It is true that Para 100 of Order does not refer to un­ utilized portion of land acquired, but there is no prohibition provided for applying principle of this paragraph — If competent authority decides to give option to previous owner to have a portion of un-utilized land, it will not violate language or spirit of this paragraph — Held: On contrary, it will be equitable and just to give preference to previous owner as compared to strangers interested in purchase of un­ utilized portion of land, minim ir IVljo Sh. Abdul Majid, Advocate, Supreme Court and Mr. Muhammad Iqbal Vaniwal, Asstt. A.G., Punjab, instructed by Rao Muhammad YousafKhan, AOR for appellants. Syed Najmul Hassan Kazmi, Advocate, Supreme Court, instructed by Mr. M.A. Qureshi, AOR for respondents. Date of hearing: 14-11-1992. JUDGMENT Ajmal Mian, J.- The above appeals are with the leave of this Court against a common judgment dated 25-06-1990 passed by a learned Single Judge of the Lahore High Court, dismissing appellants' Civil Revisions and affirming the judgments and decrees dated 17-5-1989. passed by the learned Additional District Judge, Lahore, in Civil Appeals filed by the appellants against the judgments and decrees dated 9-9-1996 passed by the learned Civil Judge, 1st. Class, Lahore, in Civil Suits filed by the private respondents. Leave to appeal was granted to consider, whether the Courts below were justified in pressing into service Paragraph 100 of the Financial Commissioner's Order No. 28, hereinafter referred to as the Order, for decreeing the private respondents above suits for restoration of the land purchased by the Land Acquisition Collector for the construction of the link road, New Ravi Bridge, Lahore, hereinafter referred to as the road. 2. The brief facts are that the Land Acquisition Collector issued a notification under Section 4 of the Land Acquisition Act, 1894, hereinafter referred to as the Act, for acquiring the land specified therein measuring 54 kanals for the construction of the road, which notification was gazetted on 13-10-1967. It seems that instead of going through the process of making an award, the Land Acquisition Collector through negotiations, settled the price of the land which was intended to be acquired and purchased the same through the sale deeds executed and registered on various dates commencing from 29th March, 1969. It further seems that after the completion of the construction of the road, 30 kanals out of the above 54 kanals, remained un-utilized. It appears that the department in terms of Paragraph 100 of the Order, decided to restore the un-utilized land to its previous owners upon the refund of the amount calculated by it. It further appears that pursuant to the above decision, the private respondents were issued notice on 4.1.1971 under above paragraph 100 of the Order, calling upon them to refund the amounts mentioned in order to get back the land mentioned therein. It was the case of the private respondents that this notice was not served by the department upon them but when they discovered about the above non-utilization of the land in 1979, they approached the department with the request to accept the refund of the amount. Upon its failure, suits were filed for the following reliefs:- "It is, therefore, prayed that a decree for a declaration may kindly be passed in favour of the plaintiff and against the defendants to the effect that he is entitled to get back the proprietary rights in the land referred to above on refunding the sale price. A consequential relief may also be granted in the form of an order, directing the defendants to accept the amount received by the plaintiff. The costs be also awarded." 3. The above suits were resisted by the appellants inasmuch as written statements were filed, in which preliminary objections were raised as to the maintainability of the suits. On merits, it was admitted that in the year 1971, it was decided that the land in dispute was no longer required for the defendants' proposed project, but it was further pleaded that the same was needed for the purpose of extending its project i.e. construction of road. It was also denied that Paragraph 100 of the Order was mandatory and that the land was neither agricultural nor pastoral. It was further pleaded that after the receipt of the notice dated 5-4-1971 for the return of the land, the plaintiffs did not approach the defendants. On the basis of pleadings of the parties, the learned trial court framed the following ten Issues:- 1. Whether the suit is not maintainable in the present form? OPD. 2. Whether the suit is properly valued for the purposes of court of fee and jurisdiction? OPP. 3. If not, what is the proper valuation and its effect? OPD. 4. Whether the plaintiff has got no cause of action? OPD. 5. Whether the court lacks the jurisdiction to adjudicate upon the matter in the case? OPD. 6. Whether the suit has been filed with malafide intentions. If so, to what effect? OPD. 7. Whether a notice under para 100 of the Financial Commissioner's Order 28 was issued to the plaintiffs and duly served? OPD. 8. Whether the defendants are entitled to compensatory costs in case the suit fails. If so, of what amount? OPD. 9. Whether the plaintiff is entitled to the relief prayed for? OPP. 10. Relief. 4. After recording evidence and hearing the parties, the learned trial court took up Issues Nos.l to 3 together and decided the same against the appellants/defendants. Whereas, on Issue No.4 it was held that in view of the finding on Issue No.9, the private respondents/plaintiffs had cause of action to bring the suits. Under Issue No.S, it was held that Court had the jurisdiction. As regards Issues Nos. 6 and 8, it was held that the suits were neither malafide nor the defendants were entitled to any special costs. Whereas, on Issue No.7 it was held that the defendants failed to prove the service of the notice under Paragraph 100 of the Order upon the plaintiffs. On Issue No.9, the following finding was recorded:- "The learned counsel for the defendants have argued that the sale deed itself shows that the land in dispute was not acquired but it was made by private negotiations. Therefore, it cannot be reverted to the plaintiffs. But this contention does not carry weight because Standing Order No.28 deals with the acquisition of land for public purposes, whether the land be taken up by private negotiations or in accordance with the provisions of the Land Acquisition Act, 1 of 1894."Consequently, the suits were decreed with no order as to costs. 5. Thereupon, the appellants filed Civil Appeals, which were dismissed with the following observations:- "In view of the above findings the appeal fails and is dismissed with the observation that the plaintiff i.e. the predecessor-in-interest of the present respondents was entitled to get so much of the land in dispute which remains un-utilized and which has not been actually used for the purpose for which it was acquired, purchased and returning the aforesaid land to the respondents the appellants are to follow the procedure laid down in the relevant rules. The parties, however, are left to bear their own costs." 6. Against the above appellate judgments/decrees, the appellants filed Civil Revisions before the Lahore High Court, which were also dismissed through the judgment under appeal. After that, the appellants filed petitions for leave to appeal, which were granted to consider the above question. 7. In support of the above appeals, Sh. Abdul Majid, learned ASC appearing for the appellants, has vehemently urged as follows:- (i) That since the land was purchased through private negotiation, Paragraph 100 of the Order was not applicable; (ii) That Paragraph 100 of the Order is not applicable when a part of the acquired land remains un-utilized; (iii) That even otherwise under Paragraph 100 of the Order, the Government has the discretion either to restore the land to the original owner or to dispose of the same through auction; and (iv) That the land was neither agricultural nor pastoral and, therefore, Paragraph 100 of the Order was not attracted to. On the other hand, Syed Najmul Hassan Kazmi, learned counsel appearing for the respondents, has contended that once a competent authority has decided under Paragraph 100 of the Order to restore the un-utilized land to the original owners and pursuant whereof survey was carried out in order to determine the un-utilized area of each of the previous owners and the amounts were calculated, it was not open to the appellants to have acted in deviation of the above decision in the absence of any evidence that the competent authority had rescinded the above decision. It has been further urged by him that no material was brought on record to indicate any such decision or to show that the land would be utilized for any other Scheme duly sanctioned by the competent authority. 8. In order to appreciate the above contentions of the learned counsel for the parties, it may be advantageous to reproduce Paragraph 100 of the Order, which reads as follows:- 100. When agricultural or pastoral land has been permanently acquired for public purpose by any department of Government and is no longer required for such purpose, the disposal of it shall be guided by the general considerations mentioned in paragraphs 493 to •«. 495 of the Land Administration Manual which are reproduced: - 493. "Where land in the permanent occupation of any department of the Punjab Government is no longer required it should be handed over to the Deputy Commissioner of the district, who becomes responsible for the disposal of it under the orders of the Commissioner. It may not however, be permanently alienated without the previous sanction of Government. There is no legal bar to its being put up to auction. But, as a matter of grace, Government is usually willing to restore agricultural and pastoral land to the persons from whom it acquired it or to their heirs on their refunding the amount paid as compensation less the 15 percent granted for compulsory acquisition. The price may be lowered, if necessary, on account of deterioration, or enhanced in the rare case of land having been improved by the use to which Government has put it. "The improvement must be one affecting the quality of the land. The fact .that land which was unirrigated at the time of acquisition can, when relinquished, be watered by a canal is not an improvement of this sort. Considering how great the rise in the market value of land has been, the terms stated above are. very liberal. It is not necessary to adopt them in their entirety where the persons concerned are remote descendants or relations of the original holders. And, where the circumstances of the case are at all out of the common, when, for example, no price, or merely a nominal price, was paid to the owners in the first instance, or when the rise in the value of land in the neighbourhood has been exceptionally large, these facts should be pointed out when referring such cases for orders so that Government may have sufficient material before it to decide whether to offer any special terms to the heirs of the persons from whom that land was acquired . In the case of rendition of land under kassies and abandoned water channels such as those in Multan and Shujabad canal divisions which came under the possession of the Irrigation Department free of cost, the land should be restored to the original owners or their heirs free of charge." 494. "In the case of plots which from their size or share are practically of no value to any one but the owners of the adjoining fields, Government will be prepared to consider proposals for giving these owners the option of purchasing at the market value. The mere fact that an outsider is prepared to outbid them should not deter the Deputy Commissioner from recommending to Government the acceptance of any fair offer which they may make." 495. "If the heirs of the original owners cannot be traced or if they or the proprietors with a claim on the ground of vicinage decline to accept the terms offered to them by the Deputy Commissioner, the land may be put up to auction or dealt with as may appear advisable under the orders of the Commissioner." These orders apply equally to all lands taken up at any time for State purposes, whether by private purchase or compulsory acquisition, under any Act or procedure at any time in force. When a building and site are sold together, the sale should be conducted in consultation with the Deputy Commissioner of the district, though the actual sale may be effected by the Public Works Department (or the departmental officer concerned). In case of all property, whether land or buildings, relinquished from occupation by the Railway Department, the property will be sold through the local civil authorities, and in case there be any reason to object to the sale the 1 local officers can do so on receipt of the documents "It will be observed that the principles set forth in the Land Administration Manual apply to agricultural and pastoral lands only, and not to building sites or town lands." A perusal of the above quoted para indicates that when agricultural or pastoral land has been permanently acquired for public purposes by any department of Government and is no longer required for such purposes, the disposal of the same shall be' guided by the general considerations mentioned in paragraphs 493 to 495 of the Land Administration Manual, hereinafter referred to as the Manual. It may further be noticed that paragraph 493 of the Manual has two parts; the first part envisages that the land permanently acquired, which is no longer required, is to be handed over to the Deputy Commissioner of the district for disposal under the orders of the Commissioner, whereas, the second part of it lays down that as a matter of grace, Government is usually willing to restore agricultural and pastoral land to the persons from whom it acquired it or to their heirs on their refunding the .amount paid as compensation less 15 percent granted for compulsory acquisition. It further provides that the price may be lowered, if necessary, on a account of deterioration or enhanced in the rare cases of land having been improved by the use to which Government has put it, and that the above improvement must be one affecting the quality of the land. It also lays down the criterion for determining the question of improvement. Whereas, paragraph 494 and 495 of the Manual deal with the case of plots which from their size or shape are practically of no value to any one and in case where the heirs of the original owners cannot be traced out etc., respectively. It may further be pointed out that the proviso to the above Paragraph 100 of the Order lays down that the above orders apply equally to all lands taken up at any time for State purposes, whether by private purchase or compulsory acquisition under any Act or procedure at any time in force. It further deals with the question, how to dispose of when a building or site are sold together or when the land or building are relinquished from occupation by the Railways Department. 9. Adverting to the above first submission of Sh. Abdul Majid, learned counsel for the appellants, it will suffice to observe that the answer of the above contention has been provided in the above proviso to Paragraph 100 of the Order, which inter alia lays down that those orders apply equally to all lands taken up at any time for State purposes, whether by private purchase or compulsory acquisition under any Act or procedure at any time in force, as already observed hereinabove and relied upon by the Courts below. 10. As regards the above second submission of the learned counsel for the appellants, it may be observed that it is true that Paragraph 100 of the Order does not specifically refer to the un-utilized portion of the land acquired but there is no prohibition provided for applying the principle of above Paragraph 100 of the Order. If the competent authority decides to give the option to the previous owner of the land to have a portion of un-utilized acquired land, it will not violate the language or spirit of the above paragraph. On the contrary, it will be equitable and just to give preference to the previous owners as compared to the strangers who may be interested in purchase of the above portion of un-utilized land. 11. Reverting to the third submission of the learned counsel, it may be stated that there is no doubt that the Government has the option either to put the land to auction or as a matter of grace, restore the same to the previous owner in terms of Paragraph 100 of the Order. It, therefore, must follow that a previous owner cannot compel the Government to restore the un-utilized land as a matter of right. However, we may observe that the discretion vested in the Government under the above paragraph is to be exercised fairly and reasonably, and not arbitrarily or capriciously. The present case stands entirely on different footing inasmuch as the competent authority decided to restore the un-utilized land to the previous owners, so much so the survey was carried out; the amounts refundable by the previous owners were calculated and the notices were issued under above Paragraph 100 of the Order to the previous owners, though they were not served. The appellants failed to bring on record any material to indicate that the above decision of restoring the un-utilized land to the previous owners was rescinded by the competent authority. As pointed out hereinabove, in the written statement plea taken was Jhat the un-utilized land was now required for the purpose of extending its project i.e. construction of road etc., but the appellants' witness D.W.I Roshan Din, S.D.O. Highways, in his cross-examination at page 38 of the paper book in Civil Appeal No. 1504 of 1990 has stated as follows:- 12. The above statement is contrary to the above averment in the written I statement made in para 4. Additionally, no material was brought on record to | indicate that there was factually any sanctioned Scheme for which the suit land was to be utilized. Sh. Abdul Majid, learned counsel for the appellants, has also submitted that there is no '.prohibition in law for the Government to utilize the acquired land for any other public purpose other than the public purpose for which the same is acquired. Reliance has been placed by him on the case of Secretary of State vs. Amulya Charan Banerjee and others (A.I.R. 1927 Calcutta 874). There seems to be no prohibition in law for the Government to utilize land for any other public purpose than for which originally it was intended, so long as the action is bonafide. But in the present case, as pointed out hereinabove, the appellants failed ! to demonstrate that they in fact needed the suit land for any other Scheme duly 1 approved by the competent authority. 13. This leads us to the last submission of Sh. Abdul Majid, learned counsel for the appellants. In this regard, it will suffice to quote the following portion from the impugned judgment of the High Court:- "No doubt, they mentioned in the written statement that the land was neither agricultural nor pastoral. However, the revenue record shows that the disputed land was situated in village Fateh Puri, Tehsil and District Lahore and was an agricultural land. In their evidence the respondents had placed copies of the jamabandls as exhibits PI to Ex. P5 to show that the land was agricultural. A copy of the notice said to have been issued by the Land Acquisition Collector (appellant No.2) to the respondents clearly shows that the appellant treated the land to be agricultural and offered it back on the basis of para 100 of Standing Order No. 28. Moreover, no evidence was led to prove that the land was not agricultural or that the same was situated within the Municipal limits." There seems to be no infirmity in the above reasoning of the High Court. 14. The upshot of the above discussion is that the above appeals have no merits and, therefore, they are dismissed. However, there will be no order as to costs. (MBC) (Approved for reporting) Appeal dismissed

PLJ 1993 SC 193 PLJ 1993 SC 193 [Appellate Jurisdiction] Present:- muhammad afzal zullah,cj,saeeduzzaman siddiqui and wali muhammad khan, JJ ABDUL AZIZ and another — Appellants versus THE STATE — Respondent Criminal Appeal No.7 of 1991, dismissed on 10-1-1993. (On appeal from judgment/order, dated 13-10-1990, of Lahore High Court, passed in Cr.A No.390 of 1988). Criminal Trial Murder— Offence of- Conviction for- Challenge to- Very fact that complainant P.W.I belonged to a place about 9 miles away from spot, per-se establishes his presence at spot at time of occurrence— P.W.2 is injured witness and doctor positively stated that injury on his person could not be caused by a friendly hand— Motive disclosed can be considered sufficient to incur wrath of appellants to extent of attempting at lives of complainant party - Held: Acquittal of co-accused by extending them benefit of doubt, cannot come to rescue of appellants as charge against them has been consistently and satisfactorily established- Held further: There is no flaw in concurrent findings of courts below— Appeal dismissed. [P 198 ]A & B Mr. M.Bllal, Advocate, Supreme Court, for Appellants. Raja Abdul Ghafoor, Advocate, Supreme Court, for State. Date of hearing: 14-10-1992. JUDGMENT Wall Muhammad Khan, J.- Abdul Aziz and Muhammad Sultan, appellants herein, through leave of the Court, call in question the judgment dated 13-10-1990 passed by a learned Division Bench of the Lahore High Court, whereby their appeal against their conviction and sentences under Sections 302/34 PPC and 307/34 PPC was dismissed with the only modification that the death sentence imposed upon Abdul Aziz was reduced to life imprisonment and, in consequence, the murder reference made by the learned Sessions Judge vide his order dated 15-03-1988 was not confirmed. Leave was granted for the reappraisal of evidence on the following points.:- "1. According to FIR and ocular evidence, four accused persons were involved and specific roles were assigned to them but trial Court has convicted only two and acquitted the remaining two. 2. Prosecution has examined only two eye witnesses namely, complainant Dholar and injured eye witness Abdul Aziz, who are both related to deceased Muhammad Ramzan. Two other eyes witnesses namely, Muhammad Yar and Bagh Ali, who are shown in FIR to have come to the spot and seen the incident, have not been examined and given up (as) unnecessary. 3. There is admitted and recorded back-ground of enmity between the parties including filing of cases and this is so admitted by two eye witnesses named above, in their cross examination. 4. Evidence of eye witness Dholar is assailable on grounds, firstly, that he did not live hi the locality where incident took place and secondly, that if he was present alongwith deceased then why he was not attacked like deceased and eye witness Abdul Aziz and why was he spared. 5. Evidence of injured eye witness Abdul Aziz is assailable on the ground that he is interested and has admitted enmity, as such there is no guarantee that he has spoken the whole truth particularly, when trial Court did not believe his version partly and acquitted two accused persons. Secondly, although he was taken to the hospital alongwith deceased, still doctor said that injuries of this witness were about 4 hours old. 6. Corroboratory evidence of recovery of weapons can be questioned on the grounds firstly, that all accused persons were arrested on 12-1- 1986, when weapons were recovered from them on 21-1-1986 (after delay of 9 days), while accused remained in police custody. Secondly, all weapons were found to be blood-stained when according to FIR .only knives were used by Aziz and Sultan and the remaining two accused persons were given role of catching hold of deceased Ramzan and PW Abdul Aziz. Thirdly, there were other inmates in the houses from where weapons were recovered." The facts of the case, briefly stated, are that Dholar complainant PW-1 alongwith his brother Muhammad Ramzan deceased and Abdul Aziz PW-2 (their sister's son) had gone to Qabula town for the purchase of some spare t parts of tractor and on their return, when they were proceeding towards their fields where the tractor was standing in unserviceable condition at 2.30 p.m., Abdul Aziz and Muhammad Sultan appellants armed with knives alongwith Ghulam Farid and Hassan acquitted accused armed with solas shouted to Muhammad Ramzan deceased and Abdul Aziz PW that they would teach them a lesson for helping Ali Sher etc. in the civil litigation and simultaneously Ghulam Farid acquitted accused caught hold of Muhammad Ramzan deceased and Abdul Aziz delivered him a knife blow on the chest hitting him on the right side of chest and Hassan acquitted accused held Abdul Aziz PW in his grip and Muhammad Sultan appellant gave a knife blow to him hitting him on the upper part of abdomen. The occurrence was allegedly witnessed by Muhammad Yar and Bagh Ali as well. Muhammad Ramzan succumbed to his injuries on the spot. Dholar complainant PW-1 went to the police station Qabula and lodged report Ex.PA. The motive for the occurrence was stated to be the land dispute between the accused party and Ali Sher etc. brothers of the wife of Muhammad Ramzan deceased in which the deceased used to help him. After necessary investigation in the case the appellants and the acquitted accused were placed on trial before the Sessions Judge, Sahiwal, who on the appraisal of the evidence produced before him by the prosecution, the statements of the accused under Section 342 Cr.P.C. and 340(2)Cr.P.C., vide his judgment dated 15-3-1988, convicted both the appellants under Section 302/34 PPC and 307/34 PPC. Abdul Aziz appellant was sentenced to death subject to confirmation by the High Court and a fine of Rs. 10,000/- or in default further two years R.I. under Section 302/34 PPC. He was also awarded rigorous imprisonment for five years and a fine of Rs.2,000/- or in default six months R.I. under Section 307/34 PPC. It was further ordered that if the sentence of death is not confirmed by the High Court and altered to one for life imprisonment or any other period, then both the substantive sentences shall run concurrently. Muhammad Sultan appellant was sentenced to life imprisonment and a fine of Rs. 10,0007- or in default two years R.I. under Section 302/34 PPC and to seven years R.I. plus a fine of Rs.2,000/- or in default six months R.I. under Section 307/34 PPC. Both the substantive sentences were ordered to run concurrently. Both the appellants were also burdened with the payment of Rs. 25,000/- each as compensation to the legal heirs of the deceased or in default six months S.I. and Rs.3,000/- each as compensation to Abdul Aziz PW or in default two months S.I. each. The compensation referred to above was to be recovered as arrears of land revenue. Ghulam Farid and Hassan accused were, however, extended the benefit of doubt and acquitted. The learned Division Bench of the Lahore High Court, through the impugned order, dismissed the appeal filed by the appellants but commuted the death sentence imposed upon Abdul Aziz appellant to life imprisonment. We have heard Mr. Muhammad Bilal, Advocate, for the appellants; Raja Abdul Ghafoor, Advocate, for the State; and have perused the record of the case with their assistance. The learned counsel for the appellants reiterated the points enumerated in the leave granting order and submitted that the prosecution had failed to establish the guilt of the accused/appellants beyond reasonable doubt and prayed for their acquittal. The learned State counsel, on the other hand, controverted the submissions of the learned counsel for the appellants and stressed that the guilt of the accused was proved from the eye-witnesses account furnished by Dholar PW-1 and Abdul Aziz PW-2 coupled with the medical and circumstantial evidence in the case. The occurrence, according to the F.I.R. Ex.PA, took place at 2.30 p.m. on ! 7-1-1986 and the report was lodged on the same day at 4.00 p.m. by Dholar complainant PW-1 in Police Station Ahmad Yar District Sahiwal distant 9 miles from the police station. Abdul Aziz PW-2 was examined by Dr. Faiz Hussain PW- 9 at 4.30 p.m. on the same day who found a stab wound on the front of right chest and according to his opinion the injury was caused to him within four hours of the examination. Under cross-examination, he denied the suggestion that the injury on the person of Abdul Aziz PW could be by a friendly hand. Obviously, the F.I.R. was lodged with promptitude and the details of the occurrence have been exhaustively described in the F.I.R. attributing stab wound of the deceased to Abdul Aziz appellant and that of Abdul Aziz PW to Muhammad Sultan appellant. The promptitude of the F.I.R. is also supported by the circumstantial evidence of the semi digested food found in the stomach of the deceased by the doctor at the time of postmortem examination. The presence of Dholar complainant PW-1 on the spot at the time of occurrence appears to be natural. The presence of Abdul Aziz PW on the spot cannot be doubted at all because of the stamp of injury on his person. He is no doubt, the sister's son of the deceased but it is highly improbable that he would falsely implicate innocent persons for his injury as well as that of Muhammad Ramzan deceased and allow the real culprit to go scot free whom he must have identified in the daylight. There is no material evidence on the file to show that the deceased and the injured PW had^ny serious enmity with anybody else to make an attempt on their lives. On the other hand, their relations with the accused party were strained on account of the civil litigation between the accused and their in-laws. The ocular evidence of Dholar PW-1 and Abdul Aziz PW-2 is supported by the circumstantial evidence as well. The I.O. on visiting the spot the same day recovered blood-stained earth, silencer Ex.P.I, a packet of grease Ex.P.2, side-mirror of tractor Ex.P.3 and a pair of shoes of the deceased Ex.P.4/1-2 from the spot and a pin of tractor Ex.P.5, a ring containing key Ex.P.6 from the pocket of the deceased. The accused were arrested on 12-1-1986. Abdul Aziz appellant on interrogation while in police custody led to the recovery of blood-stained knife Ex.P. 12 from underneath an iron box lying in his house which was made into a sealed parcel and taken into possession vide memo Ex.PE on 21-1-1986. On 25-1-1986 Muhammad Sultan appellant led the police to the recovery of blood-stained knife Ex.P. 15 from a bush near Khadar canal in the area of village Jainman Shah which was sealed and taken into possession vide memo Ex.PH. Both the knives were sent to the serologist and according to his opinion vide Ex.PR, the knives were found to be stained with human blood. Nevertheless, the learned counsel for the appellants emphatically argued that Dholar complainant, brother of the deceased and uncle of Abdul Aziz PW-2, is a resident of village Majeed Shah district Bahawal Nagar whereas the occurrence took place in Mauza Pakhian and that his presence at the spot at the time of occurrence is not natural; that Abdul Aziz being closely related to the deceased was an interested witness and not worthy of credence; that the alleged recoveries of knives from the appellants were fake; that the injury on the person of Abdul Aziz PW-2 was simple in nature and could be self inflicted to justify his presence on the spot; that there was no direct motive for the appellants to do away with the deceased and injure Abdul Aziz PW-2; that Muhammad Yar and Bagh Ali who were mentioned as eye-witnesses were given up; that on the principle offalsux uno falsus in omnibus the prosecution evidence could not be accepted against the appellants when it was discarded qua the acquitted accused; and finally, that section 34 was not attracted to the case and Muhammad Sultan appellant was liable only under Section 307 PPC for causing simple injury to Abdul Aziz PW-2. We have considered the aforementioned points of the learned counsel for the appellants but are unable to scribe to his views. As discussed earlier Dholar complainant PW-1 is the person who lodged the First Information Report and the very fact as asserted by the learned counsel for the appellants that he belonged to a place about 9 miles away from the spot, per se, establishes his presence at the spot at the time of the occurrence. He and Abdul Aziz PW have charged the appellants for causing the death of deceased Muhammad Ramzan and delivering stab blows to Abdul Aziz PW-2. The very fact that both of them were armed with knives and attacked the deceased and Abdul Aziz PW with them, shows their common intention. The doctor later on opined the injury of Abdul Aziz PW-2 simple in nature but he positively stated that it could not be caused by a friendly hand. The seat of the injury is such where nobody would take the risk of piercing a knife in the body just to show one's presence at the spot to involve innocent persons for an offence involving capital sentence when according to the appellants there is no direect blood-feud between them. Motive is a double edged weapon and if there was no motive for the appellants to commit the offence then there is no motive for false charge as well. The motive disclosed, in the prevailing circumstances of the area, can be considered sufficient to incur the wrath of the accused/appellants to the extent of attempting at the lives of the complainant party. Muhammad Yar and Bagh Ali were given up by the prosecution for sufficient reasons, inasmuch as, Bagh Ali is the brother of Ali Sher brother of the wife of the deceased with whom the accused party had civil litigation, whereas Muhammad Yar is the clan fellow of the complainant party. Their addition to the panel of prosecution witnesses could I not improve upon the prosecution case and were rightly dubbed as unnecessary by j the learned prosecutor. It is by now well settled that the criminal Courts can sift the grain from the chaff and acquit some of the accused as a matter of abundant caution by giving them the benefit of doubt without, in any way, impairing the veracity of the witnesses qua the other accused whose involvement in the occurrence is free from doubt and the part attributed to them is established from the direct as well as circumstantial evidence. In the instant case too, both the Courts below have acquitted the co-accused of the appellants by extending them the benefit of doubt but this cannot come to the rescue of the appellants in any way, as the charge against them has been consistently and satisfactorily established. For the foregoing reasons, we do not find any flaw in the concurrent findings of the two Courts below and, in consequence, dismiss the appeal. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 214 PLJ 1993 SC 214 [Appellate Jurisdiction] Present: muhammad afzal zullah CJ, saleem akhtar and wali muhammad khan JJ. HAJ MUHAMMAD KHAN and 2 others

Appellants versus contained in Ex.P.4 (page 54 to 57 of the paper book) duly signed by Inspector of Work Spl. Main Line Branch, Pakistan Railway, Wazirabad and Assistant Engineer, Spl., Pakistan Railway, Wazirabad on 26-7-1974 which was forwarded to the Divisional Superintendent Railway by the contractor vide his letter dated 6- 11-1974 (page 58 of the paper book) and the amount claimed Ex.P.5/1 (page 59 of the paper book). The learned trial Court did not doubt the authenticity of these documents and placing reliance thereon passed a decree for this amount in favour of the plaintiffs/petitioners/appellants. However, the learned High Court did not concur with it in this respect and ignored these documents from consideration for the simple reason that the execution thereof had not been proved according to law and that Muhammad Nasim, Executive Engineer Railways when confronted with the said documents under cross-examination as DW-1, refused his signatures on Ex.P.4 and dubbed them as forged. Therefore, the question which cropped up for consideration before the High Court was as to who was, under the law of evidence, obliged to prove the execution of the documents. No doubt, the plaintiffs/appellants relied upon them in support of their claim and under the maxim of secundum allegata et probata (he who alleges a fact must prove it), the plaintiffs were required to satisfy the Court about the correctness and genuineness of documents relied upon by them. However, the instant case stands on a different footing. Document Ex.P.4 not only bears alleged signatures of responsible officers of the respondents but their immediate officer viz.., the Divisional Superintendent Pakistan Railways was duly informed of the same in time on 6-11-1974 much earlier to the institution of the suit on 21-6-1977 and he was duty-bound to inquire from his subordinates about the correctness of the document and if they had denied their signatures on them and alleged forgery, he could proceed against the contractor in this respect. The silence of the department over this important controversy can lead to the only presumption that the measurement was made by the officials concerned who signed the document Ex.P.4 but for reasons best j known to them denied their existence. The learned Judges of the High court could themselves make a comparison of the disputed signatures of the officials of the department with their admitted signatures available in the other record of the department. We ourselves made this exercise and on our direction the measurement books of the disputed work containing the signatures of Assistant Engineer who was in charge of the work were produced and on comparison of the signature of the Assistant Engineer on them with the one on Ex.P.4, we are of the opinion that they fully resemble each other. In the peculiar circumstances of the case, since the documents were in possession of the department, the burden of proof had shifted to them to disprove the genuineness of the documents in question and the signature of their employees thereon. As regards the omission of the measurements recorded in Ex.P.4 from the properly maintained measurement book, suffice it to say, that the measurement book remained in the exclusive custody of the engineer in charge of the work and he had to make entries therein, of course, according to the measurements made on the spot in the presence of the contractor concerned. The engineer in charge was expected to incorporate the entries of Ex.P.4 in the measurement book and if he derelicated in the performance of his duty, the contractor could not be made to suffer for it particularly when he was handed over copy of details of the measurements duly signed by the engineer (Ex.P.4). In view of the foregoing discussion, we accept the instant appeal, set aside the judgment of the High Court and restore that of the trial Judge with the result that, the suit of the plaintiffs/appellants stands decreed for a sum of Rs.5,99,901/-. Civil Petition for Leave to Appeal No. 172-L/91, in view of the acceptance of Appeal No. 164/91, has become infructuous and is dismissed. Civil Petition for Leave to Appeal No.31/92 filed by the Government is converted into appeal. Fazal-i-Ghani, counsel for Haj Muhammad Khan and others, has abandoned their claim to the interest, therefore, while accepting appeal No. 164/91 the interest claimed has not been awarded to Haj Muhammad Khan and others plaintiffs/appellants. Since the judgment of the High Court has been set aside, this appeal too, has become infructuous and is disposed of accordingly. No costs. (MBC) (Approved for reporting) Original decree restored.

PLJ 1993 SC 218 PLJ 1993 SC 218 [Appellate Jurisdiction] Present: saad saood jan and sajjad ali shah JJ. AMANULLAH KHAN and 3 others-—Appellants versus Mst. AKHTAR BEGUM -Respondent Civil Appeal No. 1308 of 1990, decided on 5-12-1992. [On appeal from judgment, dated 17-10-1989, of Lahore High Court, passed in R.S.A. No.91 of 1989]. Civil Procedure Code, 1908 (V of 1908) O.XVII. R.3 — Pre-emption — Suit for — Non-production of evidence by defendants — Closure of evidence and decree passed in suit — Challenge to —On 6- 3-1975, partial evidence of Plaintiffs was recorded and case was adjourned to 10-7-1975 for evidence of parties — On that date, plaintiffs evidence was concluded but defendant's evidence not being available, they were burdened with costs and case was adjourned to 17-9-1975, on which date, they did not bring evidence and their side was closed — Held: It was mandatory for court to have examined evidence brought on record and it was not proper to have decreed suit straightaway without examination of evidence on record. [Pp.220 & 2211A & B PLJ 1976 SC 72 rel. Ch, Muzammal Khan, Advocate, Supreme Court, instructed by Rana Maqbool Ahmad Qadri, AOR for Appellants. Mr. C.A. Rehman, Advocate, Supreme Court, instructed by Mr. M.A. Qureshi, AOR for Respondent. Date of hearing: 5-12-1992. JUDGMENT Sqjjad Ali Shah, J.- This appeal with leave of the Court is directed against order dated 17-10-1989 of learned Single Judge of Lahore High Court, Lahore , whereby R.S.A. No.91 of 1989 is dismissed in limine in the back-ground of facts stated as under. 2. Land measuring 448 Kanals 2 Marias described in the plaint at page No.SS of the paper book was sold on 14-3-1970 to vendees Asmatullah and others who are appellants before us for Rs.1,79,240/-. Mst. Akhtar Begum, who is sister of vendor filed pre-emption suit in the Court of Civil Judge, Daska District Sialkot, against vendees on the basis of her superior right and claimed therein that sale was made for Rs.68,400/- which was market value of the land, as against fictitious price shown at Rs.1,79,240/-. Vendors resisted the suit on the grounds stated in the written statement. As many as 12 issues were framed keeping in view pleadings of the parties. On 17-9-1975 evidence of vendors/defendants was closed under Order XVII Rule 3 C.P.C. as they did not bring their witnesses and suit was decreed in favour of plaintiff. Vendors filed appeal which was dismissed by learned District Judge, Sialkot, on the ground that they failed to make good deficiency in the Court fees. Second appeal in the High Court was allowed and the case was remanded with direction that if deficiency in the Court fee had been made good by that time, appeal should be decided on merits, if not then reasonable opportunity be allowed to make up the deficiency. After deficit court fee was paid, appeal was heard on merits and dismissed on 15-6-1989. Against that decision, Regular Second Appeal was filed in the High Court which is dismissed in the terms stated above. 3. Before this Court it was contended on behalf of appellants/vendees that in the trial Court several issues were framed and on some issues burden was placed upon pre-emptor and she produced evidence but after closing evidence of vendees/defendants in the suit under Order XVII Rule 3 C.P.C. suit was decreed straight-away without considering material and evidence brought on the record. Leave has been granted to consider that contention. 4. Both 1st appellate Court and the High Court have upheld the order of the trial Court passed under Order XVII Rule 3 C.P.C. as justified and warranted for the reason that vendors as defendants in the suit failed to produce their witnesses on 17-9-1975. Order XVII Rule 3 C.P.C. contemplates that where any party to a suit to whom time has been granted, fails to produce his evidence or to cause the attendance of his witnesses, or to perform any other act necessary to further progress of the suit, for which time has been allowed, the Court may, notwithstanding each default, proceed to decide the suit forthwith. Order under Order XVII Rule 3 C.P.C. was passed on 17-9-1975 and now it is to be seen whether in the trial Court on the dates of hearing earlier than 17-9-1975, time was given to defendants in the suit to produce their witnesses, which they failed to do. 5. Perusal of the case diary shows that case was fixed for recording jof evidence of the parties on 06-3-1975 and on that date partial evidence of j plaintiffs was recorded and case was adjourned to 10-7-1975. On that date evidence i of plaintiffs was concluded and evidence of the defendants was to be recorded but ! since that evidence was not available, defendants were burdened with costs. The j case was adjourned to 17-9-1975 for recording evidence of defendants and their i request was accepted to the extent that one government employee was to be ; summoned through the Court and the remaining witnesses, who were private ' persons were not to be summoned through the Court but were to be brought by the defendants. On 17-9-1975 defendants did not bring their witnesses and before that , did not make an application for summoning the government employee witness. On A; the contrary plea was taken that on that day plaintiffs in the suit had made an application for amendment of the plaint, hence they were under the impression that : theie evidence would not be recorded. This plea was not accepted for the reason that defendants were unaware that such application was to be filed for amendment | by the plaintiffs, which was formal in nature as some Khasra numbers in the case i property were to be changed, which was allowed by the Court. It is, therefore, < very clear that defendants in the suit could not advance plausible reason for not | making available their evidence on 17-9-1975 for which they were given time ; specifically and in connection with which on previous occasion they were burdened i with costs. Plea that plaintiffs had applied for amendment in the plaint does not I advance the case of the defendants, for he reason that it was made in their absence and without their knowledge and in such circumstances even otherwise they were expected to bring their witnesses. Amendment was formal in nature and was allowed by the Court and was not supposed to come in the way of recording evidence of the defendants. 6. On the legal plane it appears that order 17 Rule 3 C.P.C. contemplates that when any party fails to produce evidence, the Court may notwithstanding each default, proceed to "decide" the suit forthwith. According to dictionary words "to decide" mean "settle (question, issue, dispute) by giving victory to one side; give idgment (between, for, in favour of, against): bring, • 'onje to a resolution", Decision" means "settlement, conclusion, formal judgment, making up one's mind". Word "decision" came up for examination in the case of Mamie Republic of Pakistan vs. Abdul Wall Khan (PIJ 1976 S.C. 72) and it was held that "decision" means judicial determination in accordance with evidence before the Court. Coming back to Order XVII Rule 3 C.P.C. the requirement of the law is that tbe Court has to decide the suit which means thai material and evidence brought on the record is to be considered in order to decide the suit. In the instant case evidence of the plaintiff was recorded and from issues in several burden was put on the plaintiff. Side of the defendants was closed as they tailed to bring their witnesses on the date of hearing. In the circumstances it was mandatory for the Court to have examined the evidence brought on the record. It was not proper to have decreed the suit straight away without examination of evidence brought on the record. 7. From the judgment of 1st appellate Court (page 33 of paper book) it appears that of two issues burden was placed upon he plaintiff and these issues are whether plaintiff has superior right of pre-emption and what is the market value of the suit land. On behalf of the plaintiff two witnesses have been examined namely; PW-1 Farman Ali, advocate, who claimed to be Numberdar of Tehsil Jaranwala District Lyallpur. He stated that vendor was cousin of his father and plaintiff is sister of vendor. PW-2 is Ikram whose father Muhammad Hussain married Akhtar Begum as his second wife after the death of mother of Ikram. He further stated that Akhtar Ali is brother of plaintiff Mst. Akhtar Begum, who are even otherwise related to him on his mother's side. In cross-examination this witness denied that defendants installed motor or constructed house on the suit land before the institution of suit but admitted that after the filing of suit they have constructed one house. During the arguments before us learned counsel for both the parties agreed that respondent/plaintiff was prepared to pay to the appellants/defendants money actually paid by them and also on stamps and District Council fees. Appellants are allowed to remove tube-well from the suit land. By consent of the parties Rs. 1,79,2407- which is price mentioned in the sale deed and other actual payments as stated above are to be deposited upto 30-3-1993. Impugned judgment is modified to the extent stated above. Appeal is disposed of in the above terms. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1993 SC 221 PLJ 1993 SC 221 [Appellate Jurisdiction] Present: ajmal mian and muhammad afzal lone, JJ. NATIONAL BANK OF PAKISTAN Appellant versus PUNJAB LABOUR COURT NO.5, FAISALABAD , and 2 others Respondents Civil Appeal No. 1262 of 1990, accepted on 23-1-1993. [On appeal from judgment, dated 9-6-1990, of Lahore High Court, passed in Writ Petition No.l253-S of 1983] Industrial Relations Ordinance, 1969 (XXIII) of 1969). S.2 (xxviii) — Employee of National Bank — Dismissal from service of — Re­ instatement order by Labour Appellate Tribunal — Challenge to — Whether respondent No.3 was a workman — Question of -- Admittedly respondent No.3 was drawing salary of Rs. 1 ISO/- P.M. and was Officer of Grade II - It is well settled proposition of law that when a person approaches court on basis of averment that he is a workman, burden lies on him to prove it and not on employer — Tribunal as well as High Court wrongly placed burden on appellant to prove that respondent No.3 was not a workman — Question whether a person is a workman, can be determined not on basis of designation of his post but on basis of duties which he was performing — Held: In this case, respondent No.3 failed to discharge burden of proving that he was a workman — Appeal accept, rpp.227,228 & 2311A, B & C PLD 1981 SC 172, 1985 SCMR 1511, 1992 SCMR 1891, PLJ 1975 SC 358, and 1992 PLC 424 discussed. Kh. Muhammad Farooq, Advocate, Supreme Court, (absent) with Mr. Tanvir Ahmad, AOR for appellant. Respondents 1 & 2: Not represented. Mr. Zaman Qureshi, Advocate, Supreme Court, instructed by Mr. s. Abdul Aasim Jaferi, AOR for respondent No.3. Date of hearing: 5-12-1992. JUDGMENT Ajmal Mian, J.- This is an appeal with the leave of the Court against the judgment dated 9-6-1990 passed by a learned Single Judge of the Lahore High Court in Writ Petition No.l253-S of 1983, filed by the appellant against the judgment dated 15-3-1983 of the Punjab Labour Appellate Tribunal, Lahore, hereinafter referred to as the Tribunal, whereby it set aside the order dated 9-8- 1981 of the Presiding Officer, Punjab Labour Court No.5, Faisalabad, hereinafter referred to as the Labour Court, dismissing respondent No.3's petition under Section 25-A of the Industrial Relations Ordinance, 1969, hereinafter referred to as the I.R.O., and ordering reinstatement of respondent No.3 without back benefits, dismissing the same and maintaining the Tribunal's judgment. Leave to appeal was granted for the reason that leave was already granted in two similar petitions, viz. C.P.L.A.No-1716/L of 1990 and C.P.L.A.No.900 of 1988. 2. The brief facts are that while respondent No. 3 was working as Grade-II Officer in the appellant-bank, he was charge sheeted on 18-1-1979 for allegedly misappropriating gold ornaments of one Munshi Khan son of Babu, which were received under gold loan No.78 dated 4-3-1978. One Muzaffar Ali Qureshi was appointed as the Enquiry Officer who after holding enquiry and hearing the parties, held that the charge of embezzlement of gold had been established against respondent No.3, Ex-Manager, Pandoke Branch, through his report dated 5-10- 1980. Pursuant to the above finding of the Enquiry Officer, respondent No.3 was dismissed from service by an order dated 24-1-1981. After serving a notice under Section 25-A of the I.R.O., respondent No.3 filed a petition under the above provision, which was resisted by the appellant inter alia on the following grounds: 2. At the relevant time, the petitioner was employed as Manager of the Pandoke Branch. He was performing managerial and administrative as well as supervisory duties and his pay was more than Rs.800/- p.m. As such, he fell within the definition of employer and was not a workman. His case is governed by the law of master and servant and the instant application under Section 25-A is not maintainable. This learned court has also no jurisdiction to entertain theapplication Without prejudice to the above, the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 is not applicable to the employees of the National Bank of Pakistan who are governed by the statutory Staff Service Rules of the Bank. In view of the provisions of clause (xxviii) of Section 2 of the I.R.O., the petitioner has no locus standi to file the present application under Section 25-A and the provisions of this section are not attracted to his case." 3. The learned Labour Court, after recording evidence and hearing the parties, by its aforesaid order dated 9-8-1981, dismissed respondent No.3's above petition by holding that the charge was proved against him and the notice of his dismissal was justified. 4. Against the above order, respondent No.3 filed Appeal No. SG-519/81-Punjab, which was allowed by the Tribunal through its judgment dated 15-3-1983, and it was held that the enquiry was not properly conducted, as the customer Munshi Khan was not examined in support of the charge. On the question, whether respondent No.3 was "workman" within the purview of clause (xxviii) of Section 2 of the I.R.O., the following finding was recorded:- "4. It has been argued by the learned counsel for the respondent that since the appellant admitted before the enquiry officer that as Manager his service was four years, he is not a workman. This is true that the appellant said that his service as Manager was four years, but he did not say that he was Manager during the period of enquiry. The designation at the time of dismissal is relevant. The appellant before the learned lower court stated that he was not a Manager at the time of his dismissal. He was Ilnd Officer but there is no evidence that he was working in supervisory capacity. He did say that his wages were Rs. 1150/- but break-up was not enquired, so it does not appear if his pay including those allowances which form part of pay exceeded Rs. 800/-. For the application of clause (b) of Section 2 (xxviii) of the Industrial Relations Ordinance, 1969, presence of two conditions i.e. pay should be more than Rs. 800/- and main duties in supervisory capacity, are necessary. So the appellant was a workman." 5. After that, the appellant filed the above writ petition, which was dismissed and it was held that respondent No.3 was a workman though he was a Grade-II Officer, as the appellant had failed to place any evidence on record as to the duties of respondent No.3. Reliance was placed on the judgment of this Court in the case of Allied Bank of Pakistan Ltd. vs. Muhammad Humayun Khan and others (1988 S.C.M.R. 1664). Thereupon, the appellant filed a petition for leave to appeal, which was granted for the above reason. 6. We have heard Mr. Tanvir Ahmad, learned A.O.R. for the appellant, and Mr. Zaman Qureshi, learned ASC for respondent No.3. It seems that on 18-1-1979 when respondent No. 3 was charge sheeted, National Bank of Pakistan (Staff) Service Rules, 1973 hereinafter referred to as the Rules of 1973, which have been held by this Court having statutory force in the case of National Bank of Pakistan vs. Punjab Labour Appellate Tribunal and 2 others (1992 P.L.C. 415) were holding the ground and not the Rules of 1980, which have been held in the above case not to have statutory force for want of approval of the Federal Government. In this view of the matter, the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter referred to as the Standing Orders Ordinance, were not available to respondent No.3 in view of proviso 1 to subsection (1) of Section 1 thereof, which lays down that "Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein." 7. However, it was contended by Mr.Zaman Qureshi, learned counsel for respondent No.3, that in order to press into service the above proviso, there are two requirements, namely: (i) that industrial and commercial establishments should be carried on by or under the authority of the Federal or any Provincial Government; and (ii) that there should be statutory rules of service, conduct or discipline applicable to the workmen employed therein. According to him, though Rules of 1973 were statutory rules, but the above first requirement is wanting in the present case, as National Bank of Pakistan cannot be said to be an industrial or commercial establishment carried on by or under the authority of the Federal or any Provincial Government. 8. We are unable to subscribe to the above submission as though the National Bank of Pakistan is a corporate body, but it is a commercial establishment carried on under the authority of the Federal Government. The Federal Government provided all the finances to the National Bank of Pakistan . It has been incorporated under the National Bank of Pakistan Ordinance, 1949. 9. This leads us to the question, whether respondent No.3 could have pressed into service the provisions of Section 25-A of the I.R.O.? We may observe that simpliciter the factum that the provisions of the Standing Orders Ordinance were not available to respondent No. 3, would not necessarily lead to the conclusion that he was not entitled to invoke above Section 25-A of the I.R.O. Section 25-A entitles a workman within the definition of clause (xxviii) of Section 2 of the I.R.O., to bring a grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force. Mr. Zaman Qureshi, learned counsel for respondent No.3, has submitted that even if it is to be held that the provisions of the Standing Orders Ordinance were not available to respondent No. 3, he was entitled to invoke above Section 25-A of the I.R.O., as he was enforcing the award given by the Wage Commission under the provisions of Section 38A to 38H of the I.R.O. It will suffice to observe that Section 38A contemplates constitution of a Wage Commission by the Federal Government for fixing the rates of wages and for determining all the other terms and conditions of service in accordance with the provisions of the I.R.O. in respect of workers of a bank or such other workers as the Federal Government may by notification in the official gazette specify. Whereas, Section 38D lays down that a decision of Wage Commission to be under Section 38C shall be deemed to be an whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person- (a) Who is employed mainly in a managerial or administrative capacity, or (b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensum or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature." A plain reading of the above clause indicates that a "worker" means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment are express or implied, but it does not include any person- (a) who is employed mainly in a managerial or administrative capacity, or (b) who, being employed in a supervisory capacity draws wages exceeding Rs. 8007- per mensum or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature. It may be pointed out that above clause (a) deals with the persons who are mainly employed in a managerial or administrative capacity irrespective of their salary; whereas, clause (b) caters for two categories of employees, namely: (i) persons who are employed in a supervisory capacity and who draw wages exceeding Rs.800/- per mensum; or (ii) persons who perform either because of the nature of duties attached to the office or by reasons of the powers vested in them, functions of managarial nature. Admittedly, respondent No.3 was drawing, according to his own showing, j salary of Rs. 11507- per month. He was an officer of Grade-II and, therefore, if hej was employed at the relevant time in a supervisory capacity, not necessarily mainly j in a managerial or administrative capacity, he would fall within the first category' of clause (b) referred to hereinabove. It is a well settled proposition of law that a! person who approaches a Court on the basis of averment that he is a workman; within the definition of clause (xxviii) of Section 2 of the I.R.O., the burden of; proof lies on him and not on the employer. In the present case as pointed outj hereinabove, the Labour Court has not examined the above question, but the' ' Tribunal relied upon the statement of respondent No.3 in his examination-in-chief ; to the effect that "I was second officer in the branch when I was dismissed. I was not Manager at the relevant time. My job was of clerical nature. I was not entrusted with managerial or supervisory job." The Tribunal was also influenced by the factum that no cross-examination was directed in this regard. In our view, , simpliciter statement of respondent No.3 that "I was not performing supervisory job", but at the same time, admitting the factum that he was Grade_II Officer, was not sufficient for discharging the above burden of proof. The Tribunal as well as the learned Judge in chamber wrongly placed burden of proof on the appellant by holding that they had failed to produce the evidence to show the duties of respondent No.3. In our view, it was for respondent No.3 to have stated what were the duties of a Grade-II Officer. It is also incorrect to conclude that the appellant | had not directed any cross-examination on the above question. In the crossi examination, it was suggested that respondent No.3 was performing the duties of ! Manager, which suggestion was denied by him. 12. The parties have referred to the case law on the subject. Mr. Tanvir Ahmad, learned A.O.R. appearing for the appellant, has referred to the case of Mufti Mushtaq Ahmad vs. the Federation of Pakistan (PLD 1981 S.C.172), the case of Ganga R. Madhani vs. Standard Bank Ltd. and others (1985 S.C.M.R. 1511), and an unreported order dated 12-8-1975 of this Court in the case of Salahuddin Hasood vs. Pakistan and 3 others (Civil Petition for Special Leave to Appeal No. K-89 of 1975). In the above first case, it has been held that for determining the question, whether the persons concerned fall within the category of "workman" or "civil servant", occupation or duties of such persons at the relevant time are to be considered. In the above case, it was also held that the appellant at the relevant time was performing duties primarily of clerical nature in the office of Station Master, (though originally appointed as a Ticket Collector in Railways), he did not fall within the definition of "workman" and the Service Tribunal was possessed of the jurisdiction under Section 2(2) of the Service Tribunals Ordinance, 1973, read with Civil Servants Act, 1973. In the above second case, the appellant was working as an Accountant and had power of attorney on behalf of the bank. It was held that he was not a workman within the definition of Section 2(i) of the West Pakistan Standing Orders Ordinance as his duties did not involve manual or clerical work but involved exercise of discretion and taking of important decisions. In the above unreported case, the petitioner was an Officer of the Habib Bank Limited and was appointed on a consolidated salary of Rs.700/-per month, leading upto a maximum salary of Rs.1500/- per month in certain Grade. His services were terminated under Clause 6 of Habib Bank Service Rules on the . ground that his services were no longer required. At the time of termination of his services, he was drawing Rs. 1160/- per month plus additional allowance of Rs.249/- per month. The petitioner's petition under Section 25-A of the I.R.O. was dismissed on the ground that he was not a workman within the purview of Clause (xxviii) of Section 2 of the I.R.O. This Court maintained the above view of the Courts below by observing that the evidence showed that the petitioner was incharge as Manager of various branches of Habib bank Limited and was incidentally writing the account books in his own hand. 13. On the other hand, Mr. Zaman Qureshi, learned counsel for respondent No.3, has referred to the case or Allied Bank of Pakistan (Supra), in which this Court dismissed the appeal of the bank against the judgments of the Courts below on the ground that there was a concurrent finding on the question of fact recorded by the Labour Court , the Appellate Tribunal and the High Court. It may be dvantageous to reproduce the relevant portion of the judgment, which reads as follows:- "We find that on the basis of evidence produced by the parties, the Labour Court, the Appellate Tribunal as well as the High Court have held as a finding of fact that the respondent was a workman within the meaning of the Ordinance. Since this concurrent finding of fact is routed in evidence there is hardly any scope for this Court to interfere in this Constitutional appeal. We called upon the learned counsel for the appellant whether the Charter of duties and functions of the respondent in order to prove the nature of duties at the time the impugned action was taken against him was produced in evidence but the learned counsel frankly stated that no evidence to that effect was produced at any stage of the case. Since the challenge in this appeal is with regard to a finding of fact and we, on the other hand, notice that the said finding of fact is established in evidence, it would not be legitimate for this Court to interfere. The appeal is, therefore, dismissed. The parties are however left to bear their own costs." He has also referred to the case of National Bank of Pakistan vs. Punjab Labour Ceurt No.7, Gujranwala and others (1992 S.C.M.R. 1891), in which this Court, while, dismissing the appeal of the National Bank of Pakistan, held that the status of the respondent-employee whether he was a workman within the purview of Clause (xxviii) of Section 2 of the I.R.O.; is to be determined with reference to the post which he was holding when the alleged misconduct was committed, and not the post which he was holding at the time of issuing of charge sheet or dismissal. On the question of duties, the finding recorded by the Courts below was maintained for the following reasons: -"We may add that he was not issued even the power of attorney by the appellant-Bank conferring on him the authority to perform functions of the Manager on behalf of the Bank. Moreover, as pointed out by the High Court, it was not established on the record, that the duties performed by the respondent during the period from 17-6-1978 (when he took over as Manager) till July, 1982 (when he was transferred to Sambarial Branch as Development Officer) showed that the duties performed by him were the duties which are mainly performed by the Manager. On the other hand, his main duties continued to be the duties which were mainly of a clerical nature that he was performing as Officer Grade III earlier and which he continued to perform even after he was asked to act as Manager pending the appointment of a permanent incumbent to the said post." He then referred to the case of Dost Muhammad Cotton Mills Ltd. vs. Muhammad Abdul Ghani and another (P.L.J. 1975 S.C. 358), in which this Court maintained the judgment of the High Court, whereby it was held that the respondent, though was performing the duties of Chief Accountant and drawing monthly salary of Rs. 1050/-, he was a workman within the definition of Section 2(i) of the Standing Orders Ordinance. 14. We may also refer to a recent judgment of this Court in the case of Abdul Razzaq vs. Messrs Ihsan Sons Limited and 2 others (1992 P.L.C. 424), in which one of us (Ajmal Mian, J.) was a member of the Bench, and in which the definitions of "workman" given in Section 2(i) of the Standing Orders Ordinance and Section 2(xxviii) of the I.R.O., were considered and compared with , and the distinctions existing between the two definitions were highlighted and the following test laid down by this Court in the case of General Manager, Hotel Intercontinental, Lahore, and another vs. Bashir A. Malik and others (PLD 1986 S.C. 103), was adopted:- "11. The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted." 15. The question, whether a person is a workman within the purview of! Clause (xxviii) of Section 2 of the I.R.O., can be determined not on the basis of the designation of his post, but on the basis of the duties which he was performing. In the present case, we have already held that the burden of proof that respondent No. 3 was a workman, was on him, which he failed to discharge. 16. The upshot of the above discussion is that the appeal is allowed and the judgments of the Courts below are set aside. Respondent No.3's petition under Section 25-A of the I.R.O., shall stand dismissed. However, there will be no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 231 PLJ 1993 SC 231 [Appellate Jurisdiction] Present: dr. nasim hassan shah, saad saood jan and muhammad afzal lone, JJ. GHULAM MUHAMMAD Appellant versus M. AHMAD KHAN and 6 others —Respondents Civil Appeal No. 1277 of 1990, dismissed on 4-1-1993 (approved for reporting on 11-1-1993). [On appeal from judgment, dated 4-10-1989, of Lahore High Court, Bahawalpur Bench, passed in C.M.No.2 of 1988 in C.R. No.l9/D/BWP of 1988]. Civil Procedure Code, 1908 (V of 1908) S. 12(2) — Fraud — Allegation of — Determination of — whether framing of issues and leading of evidence, was necessary — Question of — It is not in every case that court is under obligation to frame issues, record evidence and follow procedure prescribed for decision of suit — Matter is left to satisfaction of court which has to regulate its proceedings and adopt such mode for its disposal as is in consonance with justice — In this case, appellant did not file any reply to application under Section 12(2) of CPC controverting facts stated therein — Held: There was no occasion for framing issues — Held further: No exception can be taken to procedure followed by High Court in deciding application under Section 12(2) of CPC — Appeal dismissed. [P.2351A Ch. Asghar All Bhatti, Senior Advocate, Supreme Court, instructed by Mr. Tanvir Ahmad, AOR for appellant. Ch. Muhammad Iqbal, Advocate, Supreme Court, instructed by Abul Aasim Jaferi, AOR for respondents 1 to 4. Mr. Masud Ashraf Sheikh, Advocate, Supreme Court, instructed by Mr. M.A. Qureshi, AOR for respondent 5 to 7. Date of hearing: 15-12-1992. JUDGMENT Muhammad Afzal Lone, J.- This appeal by leave to appeal is directed against the Lahore High Court's order dated 4-10-1989, whereby an application under section 12(2) CPC filed by respondents No. 1 to 4 was accepted; the judgment and decree of that Court dated 26-6-1988 passed in C.R.No.19- D/88/BWP were set aside and direction given for re-hearing of the appeal. 2. The dispute between the parties relates to Plot No.6, measuring 13 marlas situate in Mohalla "Amm-o-Khas", Bahawalpur , which was put to auction by the Municipal Corporation, Bahawalpur . The appellant offered bid of Rs.55,000/- wbich being the highest, he deposited 1/4 of the bid money. It appears that the Chairman of the Corporation declined to confirm the auction, which led to the institution of a declaratory suit by the appellant. It was decreed in his favour on 30- 7-1987. The Corporation challenged this decree through an appeal before the District Judge, Bahawalpur, which was accepted on 15-11-1987 and the suit dismissed. The appellant then invoked the revisional jurisdiction of the High Court. This revision was disposed of vide order dated 26-6-1988 with the consent of the learned Counsel for the parties, which is re-produced below:-"Learned counsel for the respondent states that he has no objection to the acceptance of this revision petition and the suit of the petitioner being decreed subject to the payment of enhanced price of Rs.60,000/-. Learned counsel for the petitioner states that the petitioner is prepared to pay Rs.60,000/- as sale price of plot in dispute. .2. In view of the agreement arrived at between the parties, this revision is accepted and the suit of the petitioner is decreed subject to ' payment of Rs.60,000/-. The parties are left to bear their own costs. The revision is disposed of accordingly." 3. On 3-8-1988 respondents No.l to 4, who are residents of the locality wherein the .plot in question is located, moved an application under Section 12(2) CPC before the High Court on the ground that order dated 26^6-1988 was procured from the Court by practising fraud and misrepresentation. The particulars of the fraud given briefly in the impugned order are as under:- "...the disputed plot was in fact reserved for Girls Primary School but contrary to the earlier resolution passed by Baldia Bahawalpur, the learned counsel for Baldia, collusively made statement in the High Court concealing the true facts; that since the highest bid offered by Ghulam Muhammad respondent was not approved by the Chairman, therefore, the plot should have been re-auctioned and could not have been transferred through decree on the statement of counsel for Baldia; that Resolution No.22, dated 22-6-1988, whereby the transfer of disputed plot to respondent No.4 was approved by the - house of Baldia, is forged document, inasmuch as, the same was not on the agenda dated 22-6-1988. Furthermore, the motion of Mrs. Farah Liaqat Lodhi, Councillor, mentioned at No. 27 of the minutes of the Special Meeting dated 22-6-1988 belies the genuineness of Resolution 22 dated 22-6-1988; that in Special Meeting dated 22-6- 1988 motion at No.27 by Mrs. Farah Liaqat Lodhi was referred to Land Sub Committee for opinion, therefore, the plot could not have been transferred to the respondents through statement of Legal Advisor made by him in Civil Revision, before the disposal of motion-27; that the factum of the motion with regard to the disposal of the disputed plot having been referred to Land Sub Committee was suppressed from the High Court." 4. The application under section 12(2) CPC was supported by an affidavit of respondent No.2; notice whereof was given to the appellant and other parties to the revision petition, who neither filed any counter-affidavit nor any written statement to the application. It being so, in the opinion of the learned Single Judge, the allegations levelled against the appellant and functionaries of the Municipal Corporation in the application under Section 12(2) CPC remained uncontroverted. Accordingly, the application was accepted; and as stated earlier the judgment and decree passed in the revision petition on the basis of the consent of the learned Counsel for the parties, were set aside; and a direction was given for re-hearing thereof. 5. Leave to appeal was granted to examine two contentions raised on behalf of the appellant; firstjy, that respondents No. 1 to 4 were not party to the suit, out of which the revision had arisen and, therefore, the application under Section 12(2) filed by them was not competent; secondly the allegation of mis-representation and fraud could be resolved properly only after framing issues and allowing the parties to lead evidence in support of their respective pleas, but the High Court did not follow that procedure and dealt with the case summarily, which did not satisfy the requirements of justice, and vitiated the entire proceedings. 6. The first point has already been decided by this Court in the case of Ch. Jalal Din vs. Mst. Asghari Begum and others (1984 SCMR 586) wherein it has been maintained that persons not party to the suit can also file application under Section 12(2) CPC., and the following passage from the Peshawar High Court's judgment in Abdur Rauf and others vs. Abdur Rahim Khan (PLD 1982 Pesh. 172) was quoted with the approval :- "It is obvious that in Section 12(2) CPC the word 'person' and not the judgment-debtor or his successor-in-interest or the words party to the suit have been used, thus it would not be permissible to import into that provision of law something which has not been mentioned therein. It appears that the law-maker has purposely used the word 'person'. Had the intention of the law maker been to restrict the right of filing the application under Section 12(2) CPC only to the judgment-debtor or his successor-in-interest or a person who was party thereto then nothing was easier for the law-maker to have said so. If the argument of the learned counsel for the petitioner is accepted then the very purpose behind enacting the aforesaid provision of law would be frustrated because then a person not being a judgment-debtor or his successor-in-interest or a party to the suit, although his rights may have been jeopardized by the decree obtained by fraud or misrepresentation, shall be obliged to undergo the exercise of filing a suit for the purpose because a number of cases can be visualized in which fraudulent decrees are obtained in order to cast clouds on the legal rights of their opponents." 7. Learned Counsel for the appellant having been confronted with the judgment aforesaid did not have much to oppose the maintainability of the respondents' application under Section 12(2) CPC and laid emphasis on the second point that the questions of fraud and misrepresentation being questions of fact, in view of the respondent's allegations, the High Court was bound to formulate issues and extend an opportunity to the parties to produce evidence. The ground urged in the leave grant order in this respect was thus reiterated. 8. Before the amendment of Section 12 CPC and incorporation of subsection (2) therein, the validity of judgment, decree or order procured by practising fraud and misrepresentation, could be challenged through a suit. The availing of this remedy was quite encumbersome. The institution of the suit resulted in a fresh round of litigation between the parties or between the persons adversely affected by such decree and the decree-holder. Such suit was not necessarily heard by the same Court which passed the decree and could be laid down before any Court of competent jurisdiction. Further the ultimate decision of the suit entailed a fairly long time. During the pendency of the suit invariably the proceeding as to the execution of the decree remained stayed. Subsection (2) of section 12 enacted by virtue of Ordinance 10 of 1980 expressly ordains that the validity of judgment and decree obtained by fraud and misrepresentation can be assailed through an application to the Court, which passed the final judgment, decree, order and not by a separate suit. Seemingly, two fold purpose is sought to be achieved by the amending provision; firstly from jurispmdential point of view it is the obligation of the Court on whom the fraud is practised to undo the fraud. Such application lies before the Court passing the final judgment, decree or order. Since on appeal or revision, against the judgment, decree or order, obtained by fraud the matter is re­ opened before the Appellate or Revisional forum, as the case may be, the application has to be filed before the higher Court seized of such matter. Secondly by conferment of the remedy through a simple application, the litigating party is to a large extent saved from the hardship and encumbersome procedure involved in prosecuting a suit and the delay in the final decision thereof. It is correct that the determination of allegations of fraud and misrepresentation, usually involves investigation into the questions of fact but it is not in every case that the Court would be under obligation to frame issues, record evidence of the parties and! follow the procedure prescribed for decision of the suit. If it were so, the purpose of providing the new remedy would be defeated. In our view, the matter is left to: the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of the allegations in the application may adopt such mode for its disposal, as in consonance with justice, the circumstances of the case may require. It is within competence of the Court to frame formal issues and record evidence if; the facts of a particular (case) so demand. So far as the instant case is concerned,; undoubtedly, the respondents placed on the High Court's file an affidavit in 1 support of their application, but as stated in the impugned judgment, the appellant | did not file any reply to the application controverting the facts stated therein. There was thus no occasion for framing the issues. Had the appellant filed a counteraffidavit, he could well request the Court for permission to cross-examine respondent No.2, and lead other evidence to rebut the contents of the affidavit. We have gone through the High Court's record and noticed that at no stage the appellant asked for permission to produce evidence. The High Court was thus, not wrong in relying upon the respondent's affidavit. No exception, therefore, can be taken to the procedure followed by the High Court in deciding the application. The fact that the revision will be re-heard and the appellant, or for that matter respondents No.5 to 7 will have an opportunity to persuade the High Court that no fraud was committed, is another factor to dissuade us from interfering with the impugned order. For the foregoing reasons, this appeal is dismissed, leaving the parties to bear their own costs. (MBC) (Approved for reporting) Appeal dismissed

PLJ 1993 SC 236 [Appellate Jurisdiction] PLJ 1993 SC 236 [Appellate Jurisdiction] Present: muhammad afzal zullah CJ, abdul qadeer chaudhry and muhammad afzal lone, JJ. SAID NABI and another Appellants versus SHAD MUHAMMAD and others Respondents Civil Appeals No.224-P and 225-P of 1990, decided on 19-12-1992 (approved for reporting on 19-1-1993). [On appeal from judgment dated 23-1-1990, of Peshawar High Court, in WP. No.66 of 1983]. Land Reforms Regulations, 1972 (MLR 115) Para 7(3) — Excess land — Surrender of ~ Whether High Court rightly exercised its jurisdiction under Article 199 of Constitution - Question of – Although transaction was fraudulent, it could not be interfered with by Civil Court — Subject matter was within power and jurisdiction of Land Commission authorities — Civil Court as well as two authorities in hierarchy of Land Reforms System had declared transaction as fraudulent — There was no alienation at all — Held: Findings of Civil Court and Federal Land Commission regarding fraudulent nature of transaction having not been disturbed by High Court, it was not a fit case for exercise of discretion in writ jurisdiction. [P.239] A & B Mr. A.R. Shaikh, Senior Advocate, Supreme Court, and Mr. Jan Muhammad Khan, AOR (absent) for appellants (in C.A. 224 of 1990). Mr. Abdul Samad Khan, AOR for respondents 1 to 4 (in C. A.224-P of 1990). Nemo for other respondents (in C.A. 224-P of 1990). Mr. Abdul Hamid Qureshi, AOR for appellants (in C.A. 225-P of 1990). Mr. Abdul Samad Khan, AOR for respondents 1 to 13 (in C.A. 225-P of 1990). Nemo for other respondents (in C.A. 225-P of 1990). Date of hearing: 19-12-1992. JUDGMENT Muhammad Afzal Zullah, C.J.- These two appeals by leave of the Court have arisen out of the same case relating to the operation of the Land Reforms Regulation, 1972 and 1977. The High Court having allowed the Constitutional (Writ) Petition depriving the appellants in CA-224-P/90 of the benefit granted to them by the Federal Land Commission and restoring the order whereby the respondent/vendees from the declarant were held entitled to retain the land in dispute, leave to appeal was granted as under: -"Ihsanullah Khan, respondent, as per mutation No.237 attested on 17-1-1972 sold land measuring 194 kanals 4 marlas situate in village Qasam, Tehsil and District Mardan to Shad Muhammad Khan etc. Simultaneously, on the same day vide mutation No.238, the vendee mortgaged the suit land to the vendor Ihsanullah Khan. Under Martial Law Regulation No. 115, the Land Commission authorities declared the sale mutation as void; as the same was attested after 20- 12-1971. Ihsanullah Khan also challenged mutation No.237 through a suit brought on 9-12-1976 on the basis of fraud. In the meantime in 1977, another Martial Law was proclaimed in the country, the said Ihsanullah Khan again was hit by the provision of Land Reforms Regulation and while filing a declaration he surrendered the said land. On its resumption, land measuring 64 kanals was allotted to the appellants as sitting tenants. This allotment was challenged by Shad Muhammad etc. by way of an appeal before the Land Commissioner, Peshawar , who vide order dated 28-5-1981 set aside the order of the Deputy Land Commissioner and the land was ordered to go back to Shad Muhammad etc. The revision petition filed by the appellants before the Chief Land Commissioner NWFP, was dismissed on 16-7- 1981 but on further revision before the Member, Federal Land Commission, Government of Pakistan, Rawalpindi , the appellants succeeded and they were declared to be the owners of the land validly as per order dated 6-1-1983. Shad Muhammad etc. filed a writ petition which was allowed on 23-1-1990 and the order of the Federal Land Commission dated 6-1-1983 was set aside and that of the Land Commissioner, Peshawar and Chief Land Commissioner N.W.F.P., were restored." The question inter-alia, which was noted for the grant of leave was that admittedly the Land Commission authority had declared the alienation of the land in favour of Shad Muhammad etc. respondents as void, under MLR 115 of 1972. This order was not challenged by the said respondents for a very long time and was set aside much beyond the period of limitation. This aspect, it was further argued, was not taken into account by the High Court in the impugned judgment.We have heard the arguments addressed by the learned counsel for both sides. The main reason which prevailed with the High Court was that under subpara 3 of Para 7 of the MLR 115 of 1972 any alienation of the present type of land in excess of the permissible limits under para 8 after the alienor had surrendered to the Government the land in accordance with the provisions of the Regulation, would not be affected by sub-para 1 of Para 7; because it would affect the transfer of such land which is in excess of such limits. It was further observed that the alienor having already made the declaration which would be assumed to have included surrender of the excess of the land, it did not fall within the power of the Land Reforms authority to render a decision on the validity of such a transfer. Hence without setting aside the findings by the Civil Court as well as by the Federal Land Commission that the transfer was fraudulent and thus in law it could not be deemed to have existed, the Writ was issued in favour of the respondent/alienees against the appellants/tenants. Learned counsel for the appellants has extensively read from the Civil Court decision as well as the order of the Federal Land Commission. The following observations by the Federal Land Commission are pertinent for the decision of the controversy; whether the Land Commission authorities were competent to decide the question of validity of the alienation in question. "The learned District Judge has held in the case that the issue involved namely sale mutation No.237 is not a matter of adjudication by a Civil Court, whose jurisdiction is explicitly barred. He has further reiterated and I quote 'that it will be for the Land Reforms authorities of which they are already seized, to adjudicate as to the very nature of sale mutation No.237 in the light of Para 7 of MLR 115 and further to ultimate disposal/ownership of the above land; so it would either partly or wholly fall to the lot of the new allottees "In view of the judgment of the learned District Judge, the issue about the ownership of the land in the light of Para 7 of Land eforms Regulation 115 is to be decided by this forum". "It is disclosed during the course of the arguments and also mentioned in the orders of the learned District Judge that the very bonafides of mutation No.237 is full of suspicion and doubt because on the same date this very land was mortgaged by the so called vendees in favour of the vendor for the same amount of money. This transaction was perhaps entered into by the parties to hood-wink the provisions of the land reforms laws. As soon as this transaction came into notice of the Land Commissioner, he struck it down by his order dated 29th June, 1972, which in course of time became final. Those orders could not be challenged by the Land Commissioner or the Chief Land Commissioner in 1980 after a lapse of eight years. I, therefore, declare the orders of the Land Commissioner dated 28-5-1981 and that of Chief Land Commissioner dated 16-7-1981 to be without lawful authority and therefore null and void. Consequently the order that remains in the field is that of the DLC Mardan dated 21-12-1980 under which 10 acres 2 kanals 13 marlas of the resumed land was allotted to the petitioners." The effect of the decision of the Civil Court in this case would be two­fold. One, that although the transaction was fraudulent it could not be interfered with by the Civil Court . And secondly, that the subject-matter was such which was within the ambit of the power and jurisdiction of the Land Commission Authorities. This decision of the Civil Court that the Land Commission Authorities were competent in the circumstances of this case to resolve the controversy A. regarding the validity of transaction was not challenged any further and the decision of the District Court became final. Hence with respect, it was not a case of lack of power of the Land Commission Authorities. The Civil Court verdict had already been rendered that they had the power to adjudicate upon the validity of the transaction. Secondly, the Civil Court as well as two authorities, th» basic and the final, in the hierarchy of the Land Reforms System had declared the transaction as fraudulent. In a way it never existed; therefore, there would be no relevance of the permission of the alienation purported to be available under Para 7(3). There was no alienation at all. More-over, the same land has been the subject matter of a subsequent surrender under the 1977 Regulation as excess land. It would further confirm the aforementioned facts and reasons. ts Lastly, it needs to be observed that the findings of the Civil Courts and the Federal Land Commission regarding the fraudulent nature of the transaction not having been disturbed by the High Court it was not a fit case for exercise of discretion in the Writ jurisdiction under Article 199 of the Constitution. We, accordingly, allow C.A-224-P of 1990 and set aside the impugned judgment of the High Court. Civil Appeal No.225-P of 1990 is dismissed as infructuous. There shall be no order as to costs. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1993 SC 239 PLJ 1993 SC 239 [Appellate Jurisdiction] Present: ajmal mian and sajjad ali shah, JJ. CHIEF ADMINISTRATOR OF AUQAF, PUNJAB—Appellant versus Mian GHULAM FAREED and others Respondents Civil Appeal No. 1547 of 1990, partly accepted onl 1-1-1993. [On appeal from judgment and order, dated 21-4-1990, of Lahore High Court, Bahawalpur Bench, in F.A.O. No.l3/BWP of 1985]. Waqf Properties Ordinance, 1961 (W.P.Ord.XXVffl of 1961). —S.7 — Property attached to shrine — Take over by Auqaf Department of — Challenge to — Whether land belonged to descendants of Saint — Question of — Entries in mutation register cannot be brushed aside as they have their own importance and significance - Respondents who are descendants of Saint, have made positive claim in pleadings and P.W.2 has very categorically stated in his deposition that constructions were raised by descendants of Qibla AJam on different occasions — Held: Land is waqfbut not structure thereupon — Appeal accepted to extent of land and not structure thereupon. [P. 243]A & B. PLD 1971 SC 376 rel. Mr. Riaz Kayani, Advocate, Supreme Court, instructed by Mr. Mahmood A. Qureshi, AOR for appellant. Respondent: Not represented. Date of hearing: 11-1-993. JUDGMENT Sajjad Ali Shah, J.- This appeal with leave of the Court is directed against'judgment dated 21-4-1990 of Lahore High Court, Bahawalpur Bench, whereby F.A.O. No.l5-85/BWP is disposed of partly allowing with declaration that property bearing Khasra No. 8 of 7/9 is not Waqf property and further dismissing appeal with that modification. 2. Briefly stated the relevant facts giving rise to this appeal are that appellant herein assumed the administration, control and management of Shrine of Hazrat Khawaja Nur Muhammad situated in Mauza Chishtian Sharif, district Bahawalnagar and "property attached thereto" as described below:- "1. An area of 29 kanals and 13 marlas bearing Khasra No.6/12/23 and 24 Alfand 7/9, 3, 4, Alfand 8 situated in Revenue Estate of Chishtian Sharif, District Bahawalnagar containing the said shrine, graveyard, Sarai Sadiq, 6 Hujras, Masjid with one Hujra and well Darbar Wala. 2. Income from the Box placed at the shrine and offerings and subscriptions made thereto. 3. Credit balance, silver, gold, etc., deposited in the Bank." 3. Notification dated 17-6-1976 whereby the Shrine and property mentioned above were taken over as Waqf Property was challenged under Section 7 of the West Pakistan Waqf Properties Ordinance 1961 in the Court of learned District Judge, Bahawalnagar by respondents herein on the grounds that properties attached with shrine and taken over were not Waqf but personal properties of respondents, who claimed to be descendents of Ala Hazarat Qibla Alam Khawaja Noor Muhammad Mahrvi, who died in 1875 A.D. (to be referred after as the Saint) leaving behind three sons. The three sons of the Saint purchased two Bighas of land from Khan Muhammad for a price of Rupees four and on that land at the time of ' filing petition before the District Judge stood Roza of the Saint and graves of his three sons, verandah for ladies towards north of Roza and Majlas Khana towards east. Additionally land in the neighbourhood of that land was Shamlat and belonged to original owners of village Chishtian, who gifted 40 kanals and 13 . marlas to the descendents of the Saint vide mutation sanctioned on 13-11-1913. ^ Since then property mentioned above remained in constant personal use of , n descendents of the Saint as owners without any interference from any quarter. In m such circumstances it was claimed that area taken over as Waqf'was not Waqf and formed part of the property of descendents of the Saint. Similarly stand was taken that income from the box placed at the shrine and offerings and subscriptions made thereto were to be shared by descendents of three sons of the Saint according to Dastoor-ul-Amal dated 4 Zilhaj 1230 Hijri written down by Khawaja Noor Ahmad, second Sajjadafa Nashin for future guidance and further maintenance of Shrine was personal liability of descendents of the Saint. 4. In the Court of District Judge, written statement was filed on behalf of the Chief Administrator ofAuqafin which it was averred that notification was validly issued and area measuring 29 kanals and 13 marlas was rightly taken-over as Waqf Property denying and disputing claim of descendents of the Saint of private ownership. Keeping in view the pleadings of the parties seven issues were framed. Respondents/Descendants of the Saint examined three witnesses in support of their case. PW-1 is Mian Ghulam Farid, who produced documents Ex. PA, PB, PC, PD, PE and PF. PW-2 is Haftz Noor Muhammad, who has described the historical background of the Shrine and the manner in which lands attached therewith were acquired and construction thereupon made and also distribution of offerings, maintenance of Shrine and performance of religious ceremonies. PW-3 is Abdullah, who served as Khadim at the Shrine. On the other hand Department examined RW-1 Zulfikar Ali Babar, who took photographs of the Shrine and placed them on the record. RW-2 is Muhammad Saleem, clerk of the Department, who deposed about previous notification and take-over, which was challenged in suit, which was dismissed and then appeal was filed. According to him at the time of take-over the property was in miserable condition and department spent huge amount of Rs.3 lacs on its maintenance. Subsequently the take-over was denotified by Mr. Ghulam Mustafa Khar, who was then Governor of Punjab. After evaluation of evidence learned Additional District Judge vide his judgment dated 18-3-1985, dismissed the claim of respondents/descendents of the Saint on the grounds that they failed to prove the purchase of the disputed property and in the result were unable to show that it was not Wa<j/"Property. 5. In appeal, High Court after detailed examination of evidence and documents produced on the record, partly accepted and partly dismissed the appeal with declaration that property bearing Khasra No.8 of 7/9 is not Waqf Property. Relevant paragraph from the impugned judgment is reproduced as under:- "As regards Khasra No.8 of 7/9, it had been shown as Banjar Qadeem or Banjar Jadeed in the entries of the record of rights for the year 1963-64 (Exh. PP) but since 1963-64, it has been shown as Chair Mumkin Makan. In other words, it is part of the residential portion of the property of the appellants, the inference being that it had not been used as Waqf property or for any of the purposes of the shrine. The inclusion of this number in the Notification cannot, therefore, be justified." 6. Finding of the High Court as per leave granting order passed by this Court is assailed on the ground that Khasra No. 8 of 7/9 is part of land gifted for charitable and religious purposes vide mutation No.74 as already held by the High Court, then how could part thereof be held as non-Waqf when the whole is declared as Waqf. In this context reference can be made to the impugned judgment at page 26 of the Paper-book wherefrom relevant portion containing finding of the High Court is reproduced as under:- "It has been seen above that the land measuring 40 kanals 3 marlas gifted by Shamlat owners to the then descendants of the Saint vide Exh.PK was expressly for the purposes of the shrine. The Sarai Sadiq was constructed by the Nawab of Bahawalpur and this too was evidently done for a religious and charitable purpose, its object being to provide accommodation to the pilgrims and the visitors of the shrine. Though the entire 40 kanals 3 marlas of land was expressly for the purposes of the shrine, yet the Auqaf Department was fair enough to leave that part of it as was being used for the residences of the appellants. The Sarai, it has been seen from the revenue record, is situated in Khasra Nos. 3 & 4 of 7/9 and to that extent also the Notification is not open to any valid exception." 7. Learned counsel for the appellant before us contended that revenue record showed that land in dispute mentioned above was lying vacant till 1963-64. In 1967 it was shown as "Ghair Mumkan Makan. " In 1971-72 it became Ghair Mumkin Basti. Learned counsel for the appellant further drew our attention to documents filed by him in paper-book part-II. At page 32 is Register Haqdaran Zameen and Jamabandi for the year 1929-30 and in columns 5 and 6 last item is No.8 (description of land) which is shown as Nahri, At page 36 is copy of iS Jamabandi for the year 1935-36 and in column 5 whereof is mentioned No.8 as Banjar Qadeem. At page 40 and 41 is copy of Jamabandi for the year 1943-44 in which item No.8 is shown as Banjar Qadeem. At page 47 is copy of Jamabandi for the year 1955-56 in which item No.8 is shown as Qadeem. At page 51 is copy of Jamabandi for the year 1959-60 in which item No.8 is shown as Qadeem. At page 55 is a copy ofJamabandi for the year 1963-64 item No. 8 is shown as 4-13 Chair Mumkin Makan. At page 59 is copy of Jamabandi for the year 1967-68 in which item No.8 is shown as 4-13 Ghair Mumkin Makan. At page 62 is copy of Jamabandi for the year 1971-72 item No.8 is shown as 4-13 Ghair Mumkin Basti. Lastly at page 89 is copy of mutation No.74 in which date is mentioned as 3-10- 1914. It, therefore, clearly appears that initially the land was Banjar Qadeem and then it was declared as Ghair Mumkin Makan and in 1971-72 it has been shown as Ghair Mumkin Basti, which means that with passage of time, the land became habitable and structures were constructed thereupon. 8. Entries in the mutation register cannot be brushed aside as they have their own importance and significance. In similar circumstances as in this case, question of entries in mutation register came up for consideration in the case of Shrine of Hazrat Data Gunj Bakhsh Sahib of Lahore titled as Ghulam Rasool vs. Chief Administrator ofAuqaf, West Pakistan (PLD 1971 SC 376), in which it is held that it is true entries in the mutation registers are by themselves not conclusive evidence of the facts which they purport to record but they are, nevertheless, not an "unimportant part of the testimony as to a fact which is available," the weight and importance to be attached to them is in no way diminished by the fact that they have been allowed by those who were going to be adversely affected by them to remain unaltered for such a large number of years, even though they were aware of the entries in the records. It was further held in that case that Mujawars cannot be deprived of rights of performing Rsoomat and other religious ceremonies acquired by them by immemorial user and they cannot be deprived of their rights to possess lands. Administrator of Auqaf can either take rent from them or terminate their j rights by appropriate legal proceedings. In the instant case respondents/descendents of the Saint have made positive claim in pleadings and further PW-2 who is one of :the descendents has very categorically stated in his deposition (page 74 of the I paper-book part-I) that constructions were raised by descendents of Qibla Alam on 1 different occasions. 9. For the facts and reasons stated above we allow this appeal to the extent of land and not the structures thereupon. In the result finding of the High Court in the impugned judgment declaring property bearing Khasra No.8 of 7/9 is not Waqaf Property is set-aside and we hold that land described above is Waqf but not the structures thereupon and appellant is competent to recover ground rent and take other steps according to law. (MBC) (Approved for reporting) Appeal partly accepted

PLJ 1993 SC 245 [Appellate Jurisdiction] PLJ 1993 SC 245 [Appellate Jurisdiction] Present: muhammad afzal lone and wali muhammad khan, JJ. FEDERATION OF PAKISTAN, THROUGH SECRETARY, ESTABLISHMENT DIVISION ----- Appellant versus Mirza MUHAMMAD IRFAN BA1G and 4 others

Respondents Civil Appeal No. 140 of 1991, accepted on 6-8-1992 (approved tor reporting on 17- 8-1992) [On appeal from judgment, dated 1-12-1990, of Lahore High Court, Rawalpindi Bench, passed in W.P. No. 163 of 1990] Competitive Examination C.SS. Examination — Amendment of notification regarding filling in vacancies of non-joiners or repeaters by candidates in same examination — Whether respondents had acquired Vested right to he adjusted against such vacancies — Question of — Vested right means a right which is complete and not dependent on any contingency and its enjoyment has become property of person concerned — Provision of notice for examination issued by Federal Public Service Commission authorises Government to make any alteration in recruitment policy before finalization of appointments — Change in policy took place before right claimed by respondents could mature into a vested right — Held: View taken by High Court, is wrong in law- Appeal accepted. [Pp.247 & 248|A,B & C Ch. Ejaz Ahmad, Deputy Attorney General, instructed by Ch. AkhtarAli, AOR for Appellant. Mirza Anwar Bai$, Advocate. Supreme Court, instructed by Mr. lintiaz Muhammad Khan, AOR for Respondents 1 & 2. Respondents 4 & 5 not represented. Date of hearing: 26-5-1992. JUDGMENT Muhammad Afxal Lone, J.- This appeal by leave to appeal has been filed by the Federation of Pakistan against the acceptance of Writ Petition of respondents Nos.l & 2 by the learned Single Judge of the Rawalpindi Bench of the Lahore High Court. 2. The facts are that the two respondents possessing Punjab Domiciles qualified CSS Examination held in November 1988. Against 188 vacancies in all; on merit the positions secured by respondents Nos.l & 2 were 207 & 218, respectively. Due to poor merit, they could not be accommodated in the allocation zone of Punjab. The respondents, however, relied upon the Establishment Division Memorandum No.l/29/87-TV, dated 19-4-1988, which required that: "...any vacancy due to repeaters or non-joiners within two weeks of the starting of the training course of the Civil Service Academy, shall he filled up from amongst the candidates of the same competitive examination. The vacancies so caused after two weeks of the start of the Academy Training shall he carried over to the next competitive examination." On the strength of this memorandum the practice in vogue before the invitation of the applications from the candidates for participation in the competitive examination, was that on the request of the Establishment Division the Federal Public Service Commission recommended candidates to fill in the vacancies caused by the repeaters/non-joiners. Such vacancies were 34 in all, out of which the respondents claimed that 25 fell to the lot of Punjab. Having been placed at serial No. 18 & 23 in the list of the leftovers they asserted that they had the right to be adjusted against two of such vacancies. 3. It is to be noticed that the memorandum aforesaid was modified by the Training Wing of the Establishment Division vide memorandum of even number dated 1st July, 1989, as under: "In supersession of this Division's O.M. of even number dated 19th April, 1988, on the above subject the undersigned is directed to state that it has been decided with the approval of the competent authority that vacancies caused by repeaters and non-joiners from amongst the candidates of the same Competitive Examination may he carried over to the next Competitive Examination." On the authority of this memorandum, the vacancies caused on account of repeaters/non-joiners were carried forward and allocated to the next Competitive Examination. The respondents' claim was thus refused. They challenged this refusal through a writ petition and prayed for issuance of a direction to the Federation of Pakistan and the Federal Public Service Commission to re-allocate the seats of the repeaters/non-joiners to the successful candidates of 1988 Competitive Examination including the respondents. As stated above this writ petition was allowed and a direction given for adjustment of the respondents against the non-occupied posts in question. The High Court took the view that the Office Memorandum dated 19-4-1988 has a statutory backing; it created a veste'd right in the respondents to be appointed against the posts left by repeaters/nonjoiners, which could not be taken away retrospectively, meaning thereby that Memorandum dated 1st July, 1989, was not applicable to them. 4. In defending the impugned order the learned Counsel for the respondents supported the reasoning which prevailed with the learned Single Judge and further submitted that the respondents acted upon the Memorandum dated 19-4-1988 and took the examination on the understanding that under the recruitment policy then in force if they could not succeed on merit against the regional quota earmarked for Punjab Province they would be considered for the seats left vacant by the repeaters/non-joiners. It was contended that Memorandum dated 19-4-1988 having the force of rules couid not be altered to the disadvantage of the respondents and the rights vested in them thereunder extinguished retrospectively. Some case law was also cited to support this argument, but this judgment need not be burdened with the discussion thereof as it is not helpful for resolution of the controversy before us. 5. The main plank of the respondents' argument on which the impugned judgment is largely founded is that under Memorandum dated 19-4-1988 they acquired a vested right which could not be impaired by its amendment through Memorandum dated 1st July, 1989. The question is whether the respondents had acquired any vested right to be adjusted against the vacancies caused by the repeaters/non-joiners. By vested right is meant a right which is complete and not dependent on any contingency and its enjoyment has become the property of the person concerned. But such is not the position here. The respondents took the examination under the conditions specified in the notice dated 24-4-1988 issued by the Federal Public Service Commission. Its para-3 runs as under: "The examination will be conducted by the Federal Public Service Commission in accordance with the following Ru es, subject to such changes as may be decided by the Government before finalising appointments on the basis of the examination." 6. Evidently this provision of the notice authorises the Government to make, any alteration in the recruitment policy before finalization of the appointments. According to the information laid down before us by the learned Deputy Attorney General, the result of the examination was announced on 10-9-1989, allocation of groups to the successful candidates made on 11-10-1989 ^nd they reported to the Academy for training on 18-11-1989. It is obvious that the decision to carry forward the vacancies to the next Competitive Examination caused by the repeaters/non-joiners was taken by the Government much before the appointment of the successful candidates. The change took place before the right claimed by the respondents could mature into a vested right. Under this notice a right has also been reserved for the Government to fill in a smaller or larger number of vacancies than that announced. In this view of the matter, it is idle to settle the controversy as! to whether or not Memorandum dated 19-4-1988 can be categorized as a statutory! rule. 7. In order to get over the difficulty posed by para-3 and other contents of the public notice, the learned Counsel for the respondents raised the plea that determination of the policy and the mode of filling in of the vacancies is the function of the Government which cannot be appropriated unto itself by the Federal Public Service Commission. In other words, the argument was that para-3 ibid and other similar provisions were in excess of the powers of the Commission. We are, however, not persuaded by these submissions. The respondents appeared in the Examination on the footing of this public notice and were well aware of its contents, as writ petitioners, it now does not lie in their mouth to assail the validity of this provision. 8. On behalf of the respondents, it has also been urged that one Toaha Hussain Bugti, a candidate from Baluchistan, was placed at serial No.508 of the merit list but was posted against a vacancy in contemplation of Memorandum dated 19-4-1988. An attempt was thus made to show that the respondents were subjected to discrimination, but the learned Deputy Attorney General has categorically stated before us that this candidate was awarded a seat against his Baluchistan domicile and not under the memorandum aforesaid. The stand taken by him has remained unrebutted. We may observe that another factor which persuaded us to decline to uphold the impugned judgment is that the vacancies against which the respondents aspired to be posted were filled in long ago' the persons who were accommodated against these vacancies were not party to the v«,rH r-ai.ion before the High Court, For the foregoing reasons, we hold that the Men taken by the High Court is wrong in law. Resultantly, this appeal is accepted and the impugned judgment set aside, leaving the parties to bear their own costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 248 [Appellate Jurisdiction] PLJ 1993 SC 248 [Appellate Jurisdiction] Present: saad saood jan and sa.i.iad ali shah, JJ. HASHMAT ALI and another Appellants versus Mst. J ANT AN and others Respondents Civil Appeal No. 1062 of 1990, accepted on 6-12-1992 (approved for reporting on 4-3-1993) [On appeal from judgment of Lahore High Court, dated 5-3-1989, passed in Civil Revision No.767/D of 1988] Punjab' Muslim Personal Law (Shariat) Application (Removal of Difficulties) Acti 1975 (XXV of 1975) Ss. 2 & 3 — Limited female owner — Mutation in her favour and transfer by her in favour of respondents 3 and 4 — Suit against — Whether suit was barred by time — Question of — In view of trial Court, last date available to appellants/plaintiffs for filing suit, was 31-3-1976 (within one year of enforcement of Act XXV of 1975) and delay in filing same on 5-12-1979 was condoned on ground that earlier suit filed by them in 1971 was withdrawn by them with permission to file fresh suit, hence it was in continuation of previous suit — First Appellate Court has completely ignored this aspect of case and has simply held that time was allowed upto 31-3-1976 and suit was time-barred — After amendment of law, limited estate under customary law had terminated and 3/4th share passed to heir of her husband - - Held: Act XXV being a special law with in-built provision of limitation, general Limitation Act would not apply — Appeal accepted and case remanded for decision of appeal on merits. [Pp.252 & 253jA,B,C & D PLD 1971 SC 791, PLJ 1973 SC 92 and P1J 1990 SC 139 rel. Malik Muhammad Nawaz, Advocate Supreme Court, and Mr. Walayat Llinar Chaudhry, AOR for Appellants. Mr. S.M. Masud, Advocate, Supreme Court, and Syed Abul Aasim Jafri, AOR for Respondents. Date of hearing: 6-12-1992. JUDGMENT Sajjad AH Shah, J.- This appeal with leave of the Court is directed against the judgment dated 5-3-1989 of Lahore High Court at Lahore, whereby learned Judge in chamber has dismissed Civil Revision No.767/D of 1988 filed by the appellants herein. 2. Briefly stated the relevant facts giving rise to this appeal are that one Nabi Bux lived in India having two sons namely; Hashim and Allah Ditta. Hashim owned some agricultural land and died issueless having been survived by his widow Mst. Jantan, who was transferred agricultural land as limited owner according to Zamindara custom. After partition she migrated to Pakistan and filed claim upon which she was allotted land in Mouza Baghri and Mouza Kaki Nau Chak Awal. 3. Suit No.804 of 1979 was filed in the Court of Civil Judge, First Class, Shorkot by Hashmat Ali and Mst. Sharifan, who are son and daughter respectively of Allah Ditta, brother of Hashim, who was husband of Ms/. Jantan. According to he plaintiffs in-the suit Mst, Jantan transferred land through Mutation No.930 attested on 11-4-1972 in Mouza Baghri Tehsil Shorkot, in favour of Fazal and Waryam, sons of Abdullah, who were impleaded in the suit as defendants No.3 and . Land in Mouza Kaki Nau was transferred in favour of Khushi Muhammad defendant No.2), brother of Mst. Jantan and Allah Ditta through succession Mutation No. 18 sanctioned on 28-9-1959 with 3/4th share in favour of Allah Ditta as brother of Hashim and 1 /4th share in favour of Khushi Muhammad as brother of Mst. Jantan. Both Khushi Muhammad and Allah Ditta sold 18 Kanals to Haq Nawaz, Sikandar and Dalmir, sons of Ahmad, vide Mutation No. 1971 attested on 7-2-1967. Subsequently, on the plea that Mst. Jantan was alive, mutations of inheritance No.930 and 18 were cancelled and restored in the name of Mst. Jantan by two orders passed by the Additional Commissioner Revenue, Sargodha on 28- 11-1970 and 25-11-1976. Suit No.620 of 1975 was filed by Haq Nawaz and his brothers against Mxt. Jantan for declaration and permanent injunction in the Civil Court which was decreed against which appeal was filed and during the pendency of that appeal Suit No.804 of 1979 was filed by Hashmat All and A/.vr. Sharifan against Mxt. Jantan, Khushi Muhammad, Fazal, Waryam. Haq Nawaz, Sikandar and Dalmir, who have been impleaded respectively as defendants No. 1 to 7. 4. Plaintiffs in Suit No.804 of 1979 have challenged mutation in favour of Mst. Jantan and transfer in favour of Fazal and Waryam on the grounds that according to Muslim Personal Law (Shariat) Application Act V of 1962, they have become owners of 3/4th share of the land left by deceased Hashim as son and daughter of his brother. They also claimed that they were not heard at the time when Mutation No. 18 was revised. Plea was taken in the written statement that similar suit was filed by plaintiffs in the Court of Senior Civil Judge, Jhang against Sher Muhammad and Khushi Muhammad which was withdrawn by plaintiffs on 29-10-1971 with permission to file fresh one subject to the payment of cost of Rs. 100/-. Fazal and Waryam took up plea in the written statement that they had purchased suit land with bonafide intention for value after checking the revenue record. Haq Nawaz and brothers in the written statement admitted claim of plaintiffs. As many as 14 issues were framed with Issue No. 10 to the effect whether suit was within time. Both parties produced evidence and finally suit was decreed in favour of plaintiffs. It would be pertinent to point out that on the issue of limitation, trial Court held that requirement of Section 3 of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 is that suit has to be tiled within one year from 31-3-1975 which is the date of enforcement of the Act but the suit having been filed on 15-12-1979 is not time barred for the reason that this suit is continuation of the Civil Suit titled as Hashmat AH vs. Sher Muhammad tiled on 27-7-1971 which was withdrawn with permission to tile fresh one. Learned Additional District Judge, Jhang, after hearing appeal, allowed it on the short ground that suit was barred by limitation as it was not filed within one year of promulgation of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act of 1975. He did not go into the merits of the suit on other issues. High Court dismissed revision petition maintaining decision of the appellate Court to the effect that suit was time barred. 5. We have heard learned counsel appearing tor the parties in sufficient detail. Before we go into the question of limitation, it would he pertinent to state very briefly hack-ground history of life-estate share of Muslim widow. Issueless Muslim widow having inherited life-estate under custom in India from the property of her husband, when migrated to Pakistan, was allotted evacuee land with liteinterest with absolute right of ownership but restricted right of disposition and on her death, property devolved on her legal heirs and not of her husband. In 1962 Muslim Personal law (Shariat) Application Act V of 1962 was enacted, Section 5 of which envisaged termination of limited estate held under customary Law and allowed l/4th for widow and 3/4th for other heirs of husband. In the case of Additional Settlement Commissioner, Sargodlm vs. Muhammad Shaft and others (PLD 1971 Supreme Court 791), it was held that evacuee property allotted to Muslim widow in lieu of limited estate left in India would, on her death, devolve on heirs of last male owner pf property left in India and not on her heirs. Full Bench decision of the High Court to the contrary reported as Slier Muhammad vs. Additional Settlement & Rehabilitation Commissioner (PLD 1968 Lahore 234) and decision in the case of Alt Muhammad vs. Mahnwodul Hassan (PLD 1968 Lahore 329) were overruled. 6. Meanwhile difficulty had arisen as refugee females from India, who were limited owners, were allotted evacuee property in Punjab and treated as full owners of property allotted to them. After decision of the Supreme Court, legislature intending to extend benefit of the decision to the persons aggrieved by the said erroneous view, promulgated Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act XXV of 1975 and Sections 2 and 3 thereof are reproduced as under: "(2) Removal of difficulties.- Notwithstanding anything to the contrary contained in any other law for the time being in force, all decrees, judgments or orders passed in any suit, appeal or other proceedings by any court or other authority treating a refugee female allottee as full owner of the property allotted to her in lieu of the property abandoned by her in India or to which she was otherwise entitled; as a limited owner, shall be of no legal effect and such suit, appeal or other proceedings shall, on an application made by an affected person within one year of the commencement of this Act, be decided afresh. (3) Permission to file fresh suits, etc.- Any person aggrieved by an i alienation or an order of succession with regard to any property allotted to a refugee female in lieu of the property abandoned by he in India or to which she was otherwise entitled as a limited owner under custom, and who could not challenge such alienation or succession, may call it in question in a Court or before any other authority within one year of the commencement of this Act," 7. If Sections 2 and 3 reproduced above are read together, then it would appear that the intention of legislature was to divide affected persons into two categories. In the first category are persons, who, aggrieved on % account of erroneous view, had litigated and some judgments and orders were passed in suits, appeals or other proceedings. Such judgments and orders treating refugee females as full owners were declared to be of no legal effect and such affected persons were given right of fresh hearing. The other category of affected persons is covered by- Section 3 which provides for permission to file fresh suits. This permission is given to persons, who could not challenge such alienation or succession for some reason. Here legislature has not used word "did" but on purpose has used word "could" to denote the sense that such persons who were unable to challenge alienation for variety of reasons and legal objections including the one that suit was barred by limitation, were given opportunity to file fresh suits. 8. In the instant case appellants/plaintiffs in the suit are covered by first category as in view of the trial Court last date available for filing suit was 31-3- 1976 (within one year of the Act XXV of 1975) and filing of the suit on 5-12-1979 ;was condoned on the ground that plaintiffs had filed earlier suit, which was , withdrawn with permission to file fresh suit, hence continuation was there. Copy of 'previous suit was available on the record and trial Court came to the conclusion that there was continuation of proceedings and thus second suit was not time barred. First Appellate Court has completely ignored this aspect ot the case and has simply held that time was allowed upto 31-3-1976 and suit wa,-. tiled on 5-12-1979, it was time barred without adverting to first suit. i 9. Some other very important factors in this case are also to be considered land not lost sight of. Appellants are son and daughter of Allah Ditta brother of Hashim, who was husband of Mst. Jantan. Hashim was last full male owner of the property left in India in which Mst. Jantan inherited life-estate as issueless widow. After enforcement of Muslim Personal Law (Shariat) Application Act V of 1962 as amended by Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance IX of 1972 limited estate under customary law had terminated and l/4th passed to widow and 3/4th to heirs of husband and it was provided specifically that life-estate terminated on 31-12-1962. It was held in the case of Mulnininicid Yukooh vs. Member Board of Revenue Lahore (PLJ 1973 S.C, 92) that property allotted to a female in lieu of her limited estate left in India on termination devolved upon persons, who would have succeeded, had Muslim Personal Law (Shariat) Application Act of 1962 applied at the demise of last full owner. In such circumstances appellants became co-owners and co-sharers with Mst. Jantan in the I suit property to the extent of 3/4th share. Possession of Mst. Jantan of the suit property is to be considered as possession on behalf of all co-sharers. It is held in the case of Ghulam All and others vs. Mst. Ghulam Sarwar Naqvi (PLJ 1990 SC 139) by this Court that co-sharers are not obliged to file suit for declaration against adverse mutation. Suit filed for denial of right would be within time and on success wrong mutation would be corrected by Revenue authorities. 10. Haq Nawaz, Sikandar and Dalmir challenged mutation No.2190 by way of Civil Suit No.620 of 1975 inter alia on the ground that Mst. Jantan had re-married in 1951 and her limited estate had come to an end and Allah Ditta (father of appellants) had inherited 3/4th share, hence sale of land in their favour to the extent of share of Allah Ditta was valid. This plea was accepted and the suit was decreed. Appeal filed by Mst. Jantan was dismissed by Additional District Judge Jhang on 12-2-1985 (see page 16 of paper book). If no other steps are taken to challenge this finding in other competent forums then it would be presumed that this finding has attained finality and is to be so considered in present proceedings. It is observed by this Court in the case of Muhammad As lam and another vs. Abdul Hameed and others (1991 S.C.M.R. 552), that evacuee laws cannot be interpreted to allow female limited owners as full owners and such a situation is to be remedied which is accomplished by remedial statute namely Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975. 11. So far question of limitation is concerned Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 is special enactment with in-built provision for limitation of one year from the date of commencement of the Act, which is 31-3-1975, hence this limitation will apply and not general limitation Act. . 12. For the facts and reasons mentioned above, we set aside impugned judgments of High Court and First Appellate Court and remand this case to the Appellate Court for decision of appeal on merits. It would be satisfactory if appeal is disposed of within three months from the date of announcement of this judgment. Appeal is allowed with no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 253 [Appellate Jurisdiction] PLJ 1993 SC 253 [Appellate Jurisdiction] Present: ajmal mian, pdr muhammad karam shah and maulana muhammad taqi usmani, JJ. THE STATE Appellant versus Mst. IQBAL BIBI Respondent Criminal Appeal No.65(S) of 1990, accepted on 7-2-1993 (approved for reporting on 17-2-1993) [On appeal from judgment, dated 14-6-1990, of Federal Shariat Court, passed in Const. Petition No.20/1 of 1990] jurisdiction Thirty packets of heroin — Recovery of — Whether Federal Shariat Court has jurisdiction to revise order of High Court in bail matters — Question of — Even if it is held that an order passed by High Court granting or refusing bail to an accused person, comes within compass of expression "any case decided", High Court is not covered by term "criminal court" used in clause '(0 of Article 203-DD of Constitution -- It refers to a Magistrate or a Sessions Judge — High Court being a superior court'created under Article 192 of Constitution, cannot be equated with a criminal court — While exercising jurisdiction under Section 497 or 498 Cr.P.C., High Court does not exercise jurisdiction under any law relating to enforcement of Hudood — Held: High Court not being covered by expression "Criminal Court" and order of refusal of bail by High Court not being an order relating to enforcement of Hudood, revisional jurisdiction of Federal Shariat Court under Article 203-DD of Constitution, was not attracted — AppeaLacgfipted. I Pp.236 & 2.T/|A,B & C PLD 1989 Karachi 481. PLD 1992 Lahore 455. 1990 P. Cr.L.J 409. 1990 SCMR 211 and 1990 SCMR 1092 rel. Mr. M. Sardar Khan, Advocate General, NWFP tor Appellant. Date of hearing: 7-2-1993. JUDGMENT Ajma! Mian, J.- This is an appeal with the leave of this Court against the judgment dated 14-6-1990 passed by a learned Single Judge of the Federal Shariat Court, whereby he purported to exercise his revisional jurisdiction against the order dated 11-4-1990 passed by a learned Single Judge of the Peshawar High Court rejecting the bail application of the respondent, who was found in possession of 30 packets of heroin weighing 130 grams. Leave to appeal was granted to consider, whether die Federal Shariat Court has jurisdiction under Article 203-DD of the Constitution of Islamic Republic of Pakistan, hereinafter referred to as the Constitution, to revise the order of the High Court in exercise of Us revisional jurisdiction. 2. ' The respondent has been served with the notice of hearing for today, but has not turned up. We have heard Mr. M. Sardar Khan, learned Advocate-General, N.W.F.P., in support of the above appeal. He has invitee! our attention to a recent judgment of a Full Bench of the Federal Shariat Court in Criminal Revision Petition No.5-K of 1991 (S\ed Maskin Slitih vs. The Suite mid another) rendered in November or December, 1992, wherein it has been held that the Federal Shariat Court does not have revisional jurisdiction under Article 203-D of the Constitution in respect of an order passed by a High Court. We are inclined to take the same view. 3. It may be pertinent to reproduce Article 203-DD of the Constitution, which was incorporated by President's Order No.5 of 1992, which reads as follows:- "203-DD. (1) The Court may call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of such court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. (2) In any case the record of which has been called for by the Court, the Court may pass such order as it may deem fit and may enhance the sentence: Provided that nothing in this Article shall be deemed to authorise the Court to convert a finding of acquittal into one of conviction and no order under this Article shall be made to the prejudice of the assused unless he has had an opportunity of being heard in his own defence. (3 The Court shall have such other jurisdiction as may be conferred on it by or under any law." 4. A perusal of the above Article indicates that under clause (1) thereof, the Federal Shariat Court has been empowered to call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such court. It also empowers the Federal Shariat Court that when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. It may also be noticed that clause (2) of the above Article empowers the Federal Shariat Court to pass such order as it may deem fit and even to enhance the sentence in any case in which the record has been sent for under above clause (1). However, proviso to the above clause (2) imposes a clog on the power of the Federal Shariat Court by providing that nothing in this Article shall be deemed to authorise the court to convert a finding of acquittal into one of conviction and no order under the above Article shall be made to the prejudice of the accused unless he had an opportunity of being heard in its own defence. It may also be pointed out that clause (3) clarifies that the Federal Shariat Court shall have such other jurisdiction as may be conferred on it by or under any law. 5. We may observe that in order to attract above clause (1) there are three requirements: (i) The record which may be called, must pertain to any decided case; (ii) the case should be decided by any criminal court; and (iii) the decision should be under any law relating to the enforcement of Hudood. 6. Even if we were to hold that an order passed by a High Court granting or refusing bail to an accused person comes within the compass of the expression "any case decided", the High Court is not covered by the term "criminal court" used under the above clause (1) of Article 203-DD of the Constitution. It refers to a Magistrate or a Sessions Court. The High Court, being a superior court created under Article 192 of the Constitution, cannot be equated with a criminal court. Secondly, when a High Court declines to grant bail under Section 497 or Section 498 Cr.P.C., it does not exercise jurisdiction under any law relating to the enforcement of Hudood. 7. We may also observe that a revisional jurisdiction of the nature is exercisable in respect of the criminal courts, which can be considered subordinate to the Federal Shariat Court . The High Court cannot, in any way, be considered subordinate to the Federal Shariat Court for the above purpose. 8. Mr. M. Sardar Khan, learned Advocate-General, NWFP, besides"referring the above unreported judgment, has relied upon the following cases: - (i) Liaqat All and 2 others vs. The State and another (PLD 1989 Karachi 481 in which one of us (Ajmal Mian, J.) as the Chief Justice of Sindh High Court, while construing Articles 203-G and 203-DD of the Constitution, has held that the High'Court's jurisdiction under Section 561-A Cr.P.C. remained intact as the Federal Shariat Court has not been conferred jurisdiction akin to that (under) Section 561-A Cr.P.C. (ii) Amir Shah vs. The State (PLD 1992 Lahore 455); In the above case, the facts were that a petition under Section 435 read with Section 439 Cr.P.C. was filed in the Lahore High Court against the order of the learned Sessions Judge, Pakpattan, made under Section 514 Cr.P.C. directing the petitioner to pay the penalty of his bond, namely, Rs.20,000/-. The petitioner stood surety for one Hassan who was accused of offence under Sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. When the above petition came up for hearing before a learned Single Judge of the Lahore High Court, the learned Assistant Advocate General referred to the case of Khurshid vs. The State (1990 P.Cr. L.J. 409) and contended that by virtue of Article 203-DD of the Constitution, the revisional jurisdiction of the High Court stood ousted. The learned Single Judge, after referring to the case law, held that since the impugned order before him was not passed under the provisions of Hudood Laws, the High Court's revisional jurisdiction was not ousted. He dissented from the Karachi view taken in Khurshid vs. The State (Supra). Reliance was placed on the case of tiaji Muhammad Aslam Khan vs. Muhammad Aslam and another (1990 S.C.M.R. 211) and the case of Malik Nazar Ellahi and another vs. 77zeSmre(1990S.C.M.R. 1092). In the former case, the High Court under Section 561-A Cr.P.C. quashed the proceedings initiated under Section 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, which order was maintained by this Court. Whereas, in the latter case, the petitioner who was a surety was ordered to pay the penalty of his bond by the Court of Sessions furnished by him in a case under the Prohibition (Enforcement of Hadd) Order, 1979. On a revision petition under Section 439 Cr.P.C., the High Court had reduced the amount of penalty. This Court declined a petition for leave to appeal against the above judgment of the High Court. 9. We reiterate the views taken in the above two judgments of this Court which directly support the view which we are inclined to take. Since the High Court was not covered by the expression "criminal court" used in above Article 203-DD of the Constitution and as the order of refusal of bail by the High Court was not an order which can be said to be an order for the enforcement of Hudood as pointed out hereinabove, revisional jurisdiction of the Federal Shariat Court under Article 203-DD was not attracted to in the present case. 10. The appeal is, therefore, allowed and the impugned judgment is set aside. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 258 [Appellate Jurisdiction] PLJ 1993 SC 258 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ, abdul qadeer chaudhry and muhammad afzal lone, JJ. Raja GOHAR ZAMIR KHAN and 6 others Appellants versus WAPDA THROUGH ITS CHAIRMAN, and 3 others ----- Respondents Civil Appeal No.229 of 1991, accepted on 22-12-1992 (approved for reporting on 17-2-1993) [On appeal from judgment, dated 4-6-1991, of Peshawar High Court, Circuit Bench, Abbottabad, in R.F.A. No. 10 of 1987] Damages Land — Acquisition of -- Compensation for damage to adjoining property — Claim of — During arguments, learned counsel for appellants declared that appellants are ready to surrender land to WAPDA without any additional compensation as it had been rendered absolutely useless for them — Land offered by appellants' side is positive proof of fact that it is of no use to them — No evidence is necessary in this behalf — Held: Offer made by appellants' side together with attending circumstances, is enough to justify a conclusion that assessment of compensation for damages by trial Judge was correct — Appeal accepted, judgment of trial court restored with condition of transfer of ownership of land to WAPDA. [pp 259 & 2 60]A,B & C Mr. Fida Muhammad Khan, Advocate, Supreme Court, and Ch. Akhtar AH, AOR for Appellants. Ch. Ijaz Ahmad, Advocate Supreme Court, and Khan hntiaz Muhammad Khan, AOR for Respondents. Date of hearing: 22-12-1992. JUDGMENT Muhammad Afzal Zullah, C.J.- This direct appeal in a land compensation case is to challenge the acceptance, partly, by the High Court of the respondents/WAPDA's appeal. The facts as noted in the impugned judgment are as follows: The respondents during the process of the construction of Khanpur Dam allegedly left very little space on the left side of River Haro for the flow of water and also changed its direction due to the deposit of the excavated material from the Dam and spill-way into the River, as a result whereof, the land owned by the appellants in adjoining villages Shohal and Mohra Gutts comprised in the Khasra Nos.194, 196, 198 (in village Shohal) and Khasra Nos.6/4, 7.7/1. 30, 31, 103, 153, 154, 155, 335/162, 164, 165 mm, 161 mm, 169 min, 170 and 171 (in village Mofera Gutts) which were of 'bagh' and Charri-Ahi' kind and receiving water for irrigation from Haro were either eroded or turned into Barani lands. Four water mills owned by the appellants on this site also stopped functioning for want of water. The appellants after having failed to settle accounts with the WAPDA authorities with regard to the receipt of compensation for the damage done to their aforesaid properties, thereafter in the year 1980 filed a suit before the lower court for the recovery of a sum of Rs. 11,32,000/- The respondents resisted the claim and the learned trial Judge after settling as many as 9 issues arising out of the pleadings between the parties, recorded evidence on both sides and thereafter in view of his decision oh-issues No. 1, 2, 5 and 8, relating to the cause of action, limitation, jurisdiction, jurisdiction of the civil court and entitlement of the appellants to the decree claimed, allowed the suit partially and passed a decree for Rs.4,88,448/- as principal amount. The High Court further reduced this amount with the reasoning that the trial Court while awarding compensation to the appellants took into consideration and looked into the market value only which is usually fixed for acquisition purpose. It did not consider the other aspect of the case that the property though damaged is still in the ownership and possession of the appellants and can be used by them for many other purposes than agriculture. Likewise chances of reclamation of the land for agriculture and restoration of the water mills was also not ruled out. Learned counsel for the appellants, in order to prove that the land in question has for all practical purposes been, as put by him, "destroyed altogether" and it is of no use to the appellants' side at all, in support of his plea demonstrably, declared with anguish as follows: "the land is no more land as visualised by the High Court . Even for the future the appellants are ready to surrender it to WAPDA without any additional compensation than what was awarded by the trial Court." He also stated that for the appellants it is absolutely useless, but the WAPDA might be able to put it to some use because some land very near to the suit land stands already acquired by them.Even if the last mentioned tact stated by the learned counsel is not given | much importance, the fact remains that the surrender of the land, ottered from the appellants' side, is proof positive of the fact that it is of no use to them. No evidence now is necessary in this behalf. Learned Deputy Attorney-General for the respondents, obviously having no answer, rather stunned, upon the demonstrative statement of the learned counsel for the appellants, could not oppose the otter with any 'justification. As otherwise, if the trial Court judgment is restored as it is, without accepting the offer from the appellants' side, the land would not in that eventuality go to WAPDA. ib the light of the foregoing discussion the offer made from the appellants' side together with the other attending circumstances, is enough to justify a conclusion that the assessment by the learned trial Judge was correct. Accordingly, while accepting this appeal and setting aside the judgment of the High Court the trial Court judgment impugned before the High Court is restored; with the condition, direction and order that the land in question stands surrendered to the ownership of WAPDA. The appellants' side will have no right or interest therein. Necessary consequential actions shall be taken including the change of physical possession and all the entries in the record of rights. The compensation or balance thereof as decreed by the trial Court shall be paid within three months to the appellants. There shall be no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 260 [Appellate Jurisdiction] PLJ 1993 SC 260 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ, abdul qadeer chaudhry and saleem akhtar, JJ. Syed MUKHTAR ALI SHAH ----- Appellant versus FEDERATION OF PAKISTAN, and another -— Respondents Civil Appeal No.433-K of 1990, dismissed on 25-1-1993 (approved for reporting on 17-2-1993) [On appeal from judgment dated 6-3-1989, of High Court of Sindh, Karachi, in C.P. No.D-1230of 1988] Prevention of Corruption Act, 1947 (II of 1947) S.5(2) read with MLO 72 — Summary Military Court -- Conviction by - Challenge to - Even if it be assumed for sake of argument that somebody appeared before appellant and claimed to be trustee/executant, enquiry by appellant that he was truly representing trust, was a must - On merits, there is enough other material to show that appellant was rightly found guilty -- Conditions of corumnon-judice or lack of jurisdiction are not satisfied nor there is any question of malafides — Held: No interference with impugned judgment is called for — Appeal dismissed. [P.262JA & B PLD 1989 SC 26 rel. Mr. Ahmad YousafAli Razi, Advocate, Supreme Court, and Mr. Muzaffar All Khan, AOR for appellant (absent). Mr. Shuhudul Haq, Advocate, Supreme Court, and Mr. A. R. Qureshi, AOR (absent) for Respondent No. 1. Mr. S.M. Abbas, AOR for Respondent No.2. Date of hearing: 25-1-1993. JUDGMENT Muhammad Afzal Zullah, C.J.- In this appeal through leave of the Court the leave grant order is as follows: "Petitioner seeks leave to appeal from the judgment of the High Court of Sindh dated 6th March, 1989 whereby the petitioner's Constitution Petition was dismissed in limine on the ground that the petitioner's conviction by the Summary Military Court could not be challenged unless it was corum nonjudice, without jurisdiction or mala fide. Petitioner alongwith others was convicted under MLO-72 and Section 5(2) of the Prevention of the Corruption Act, 1947. It is submitted by the learned counsel for the petitioner relying on Federation of Pakistan vs. Malik Ghulam Mustafa Khar (PLD 1989 Supreme Court 26) that the conviction was without jurisdiction inasmuch as on the face of the charge against the petitioner no offence under MLO-72 and Section 5(2) of the Prevention of Corruption Act, 1947 was made out. It may be stated that according to the learned counsel of the petitioner, the petitioner has served out the sentence of imprisonment awarded to him but the amount of fine imposed on him has not been so far recovered from the petitioner.The contention raised requires consideration. The point for examination as is apparent from the leave grant order contains mixed question of law and fact. The appellant was required to show that the charge against him on its very face was untenable and thus no case on merits was made out against him. We in absence of the appellant, treating this matter as jail appeal, called upon the learned counsel for the respondent to assist us. He in all fairness to the appellant stated that although' the condition regarding the appearance of alleged executant before the appellant might be established even if the case is now remanded for re-trial, yet as held by the High Court there was enough material to come to the conclusion that the appellant was directly involved in the crime. He in this behalf relied on the following observations in the impugned judgment:-"We cannot subscribe to the contention of the learned counsel that the petitioner in capacity as a Sub Registrar had only to act mechanically in accepting documents for registration without enquiring into the title or authority of executant. It will suffice to reproduce Rule 126 of the West Pakistan Registration Rules which reads as under :- "126. Enquiry as to execution, identity, etc. The registering officer shall then, with as little delay as possible, enquire whether the document was executed by the alleged executant, and satisfy himself as to the identity of the person appearing before him to admit execution. In cases of alienation, he shall satisfy himself of the identity not only of the alienor, but also of the alienee, if the latter is present. If the presenter is the executant, or his representative, assign or agent, or if such executant, representative, assign or agent is present, the registering officer shall make the necessary enquiry at once. He should also require the presenter, if an agent, to produce a power-ofattorney authenticated in the manner prescribed in Section 33 of the Act and, if a representative or assign, to produce evidence of his status".Even if it be assumed for the sake of argument that somebody appeared before the appellant and claimed to be the trustee/executant, that by itself was not enough to show that he was truly representing the trust and inquiry by the appellant was a must. On merits there is enough other material to show that the appellant was rightly found guilty. Therefore, in so far as the point noted in the order tor grant of leave to appeal is concerned, there is no scope for any further examination nor for -interference by this Court with the impugned judgment of the High Court. Before closing it needs to be mentioned that in this case other conditions of carum nonjudice or lack of jurisdiction as spelt out in the case of Federation of Pakistan vs. Malik Ghulam Mustafa Khar (PLD 1989 S.C. 26) are not at all satisfied; nor, there is any question of mala fides. It has rightly been held so by the High Court in the impugned judgment. Thus this appeal fails and is, accordingly, dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 262 [Appellate Jurisdiction] PLJ 1993 SC 262 [Appellate Jurisdiction] Present: dr. NASiM hassan shah, ACJ, shafiurrf.hman, saad saood jan, abdul qadeer chaudhry and sajjad ali shah, JJ. GHULAM HASSAN and another Appellants versus GOVERNMENT OF NWFP, THROUGH CHIEF SECRETARY, and 3 others —- - Respondents Civil Appeal No.l of 1992, dismissed on 24-8-1992 [On appeal from judgment/order of Peshawar High Court, Abbottabad, dated I I'­ ll-1991, in Review Petition No.3 of 1991] Acquisition of Land Land -- Acquisition of — Award modified by High Court -- Challenge to ~ Amendment in Section 28 of Land Acquisition Act, 1984, not only altered nature of interest from compound to simple, but also reduced its note from eight to six percentum per annum - After promulgation of Amendment Ordinance, 1983, courts could award simple interest at rate of 6 percentum per annum and not more - - Held: High Court was right in holding that interest payable to appellants was to be regulated by Section 28 of Land Acquisition Act as it stood on day when Senior Civil Judge announced his judgment — Held further: Appellants cannot claim that as acquisition was prior to amendment of Section 28, they were entitled to received interest at rate in force prior to amending Ordinance V of 1983 — Appeal dismissed. [Pp.264 & 365JA.B & C Mr. Ejaz Afzal Khan, Advocate, Supreme Court, instructed by Ch. Akhtar All, AOR'for Appellants. Mr. M. Sardar Khan, Advocate General, NWFP for Respondents. Date of hearing: 24-8-1992. JUDGMENT Saad Saood Ja^, J.- This is an appeal from the judgment dated 11-11-1991 of the Peshawar High Court, Abbottabad Bench, partly modifying the judgment of the Senior Civil Judge, Mansehra, in a matter arising out of acquisition proceedings under the Land Acquisition Act, 1984. The relevant facts are as follows: 2. Land measuring 14 kanals situate within the municipal limits of Mansehra was acquired by the Provincial Government for the construction of a Commercial Training Institute. The notification under Section 4, Land Acquisition Act, was issued on 12-12-1979. The Collector announced his award on 11-11-1980. He determined the price of the land at Rs.21,228/40 per kanal. The appellants who were the owners of the land were not satisfied with the award and at their instance the Collector made a reference under Section 18 of the said Act to the Senior Civil Judge, Mansehra. After considering the evidence led before him the learned Senior Civil Judge, by his judgment dated 14-2-1990, re-determined the price of the land at Rs.30,0007- per kanal. He also directed that the owners should be paid compound interest at the rate of eight percentum per annum on the enhanced amount of compensation from the date the Collector took possession of the acquired land till the payment of compensation to the appellants. 3. From the judgment of the learned Senior Civil Judge the Provincial Government filed an appeal before the High Court. A Division Bench in the High Court affirmed the finding of the learned Senior Civil Judge on the price of the acquired land and dismissed the appeal on 24-2-1991. The Provincial Government then filed a review application pointing out that the award of compound interest at the rate of eight percentum per annum on the enhanced amount of compensation was in conflict with the provisions of Section 28, Land Acquisition Act, as in force in the Province. The High Court found substance in the contention; accordingly, it accepted the review application and directed that in conformity with the said section the owners should be paid simple interest at the rate of six percentum per annum. From the judgment of the High Court the owners have come in appeal to this Court. 4. Before examining the contention raised on behalf of the appellants it will be of advantage to take notice of the two amendments made in Section 28, Land Acquisition Act. The said section before the amendments read as follows: "If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of six per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court." This section was amended by Act III of 1969. The amendment raised the rate of interest to 8 percentum per annum and provided that the interest would be compound in nature. In the N.W.F.P., Section 28 was further amended by Ordinance No. V of 1983. The amendment recast the section to read as follows: "If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the collector shall pay simple interest on such excess at the rate of six per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court." It will be noticed that the section as it stood after the amendment altered not only the nature of the interest from compound to simple but also reduced its rate from eight to six percentum per annum. Consequently, after the promulgation of the Ordinance the courts could, in the event they raised the amount of compensation, award only simple interest and that too at the rate of six per centum per annum on the enhanced amount. As will be noticed the learned Senior Civil Judge announced his judgment by which he enhanced the compensation on 14-2-1990, that is, when Section 28 already stood recast by the amending Ordinance. 5. ' On behalf of the appellants it was contended that as the land was acquired by the Provincial Government long before the promulgation of the Ordinance they were entitled to compound interest at the old rate on the enhanced amount. This contention is clearly without any merit. Under Section 28, the interest is to he paid on the enhanced amount of compensation; consequently, unless there is a determination that the amount of compensation as found by the Collector is less than what ought to have been awarded, the question of paying any interest to the owner does not arise. The owner cannot, therefore, claim any vested right in either the rate or nature of interest allowable under the law prior to the said determination. The High Court was thus right in holding that the interest payable to appellants was to be regulated by Section 28 as it stood on the day when the Senior Civil Judge announced his judgment. 6. Section 4 of the Amending Ordinance of 1983 makes the position further clear. It reads as follows: "Notwithstanding the provisions of Section 28 , as amended by this Ordinance, the interest already accrued on the amount awarded, immediately before the commencement of this Ordinance, shall not be affected and shall be payable as if this Ordinance had not come into force. " In this section the expressions 'the interest already accrued' and 'the amount awarded' are of significance. They indicate that only such cases were intended to be kept out of the purview of the recast Section 28, where there had already been a determination on the adequacy of compensation awarded by the Collector and interest had accrued on the enhanced amount before the Ordinance came into force. By necessary implication no protection from the operation of the recast Section 28 was afforded to cases where no finding with regard to the insufficiency of the amount fixed by the Collector had been recorded and for that reason no accrual of interest had yet taken place. In the circumstances the appellants cannot claim that as the acquisition of the land was prior in point of time to the recasting of Section 28 they were entitled to receive interest at the rate in force prior to the promulgation of the Amending Ordinance of 1983. 7. This appeal is without any merit and is hereby dismissed. There will be no order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 266 [Appellate Jurisdiction] PLJ 1993 SC 266 [Appellate Jurisdiction] Present: ajmal mian, Pm muhammad karam shah and maulana muhammad taqi usmani, JJ. MUNAWAR HUSSAIN alias BOBI -— Appellant versus ' THE STATE Respondent Criminal Appeal Nos.l9(S) 21(S) of 1989, dismissed on 2-2-1993 (approved for reporting on 17-2-1993) [On appeal from judgment dated 22-12-1988, of Federal Shariat Court, passed in Criminal Appeals Nos. 194/1, 266/L and 311/L of 1987] (i) Accomplice Accomplice — Evidence of — Whether conviction can be recorded on evidence of accomplice — Question of ~ There cannot be any cavil with well settled proposition yf law that court, as a rule of prudence, seeks corroboration on material particulars jy independent corroborative piece of evidence in case main witness is an approver 3r an accomplice although in terms of Article 16 of Qanun-e-Shahadat Order 1984 vhich corresponds to Section 133 of Evidence Act. 1872, conviction can be bunded on evidence of an accomplice without any corroboratior if court is ;atisfied with truthfulness of his evidence — Trial Court has referred in detail, to :orroborative pieces of evidence on material particulars and Federal Shanat Court .Iso addressed itself to this aspect. Held: Appellants were convicted not solely on vidence of accomplice. [Pp.272 & 273JA & B PLD 1956 SC 407, PLD 1960 SC 237, PLD 1961 Lahore 880, PLD 1971 SC 447 and 1968 P.Cr.L.J. 1625 discussed. ii) Interested witness Three and a half kilograms of heroin — Recovery of ~ Conviction for ~ 'hallenge to — Whether P.Ws. 10, 11 and 25 were interested witnesses — Question f -- Relationship inter-se between witnesses or between a complainant and 'itnesses does not make witnesses interested witnesses — An interested witness is a srson who has some personal motive to implicate an accused person falsely – Said .Ws. had no motive to implicate appellants falsely — Held: Said witnesses cannot ; treated as interested witnesses simpliciter for reason that they were related to ,W. 24 who was not even charged for offence in Pakistan. rpp 777 & 2781E ii) Practice and Procedure Three and a half kilograms of heroin - Recovery of - Conviction for - ballenge to ~ In cases of smuggling of narcotics, Courts cannot expect evidence snerally available in ordinary cases, as persons who indulge in such nefarious tivities, are more organized, affluent and influential and generally they manage to use dents in prosecution evidence - In such like cases which are not only damaging image of Pakistani nation in comity of nations but are making younger generation addicts, Courts' approach should be dynamic and they should overlook technicalities — Held: Prosecution has succeeded in proving case against appellants beyond reasonable doubt and there is sufficient evidence to sustain convictions and sentences of appellants — Appeals dismissed. rp 2781F & G (iv) Prohibition (Enforcement of Hadd) Order, 1979 (P.O.4 of 1979) Art. 3 read with Customs Act, 1969, Sections 156(1) (8) and 178, and Criminal Procedure Code, 1898, Sections 337 & 494 -- Three and a half kilograms of heroin — Recovery of — Conviction for -- Challenge to — Whether it was necessary that accomplice should have been pardoned under Section 337 of Code — Question of ~ No doubt P.W. 24 was an accomplice to commission of offence in this case, but he cannot be equated with an ordinary accomplice — He was convicted by Oslo Court, Norway and was brought to Pakistan on request of Government of Pakistan while he was serving 10 years R.I. there, because, in his absence, present appellants could not be convicted — He was to be taken back to prison in Norway for serving his sentence there — Held: In this background, question of pardoning him under Section 337 or discharging him under Section 494 Cr.P.C. was not very much relevant -- Held further: Conviction' of appellants has been properly recorded by trial Court and maintained by Federal Shariat Court. rp_ 274 & 2751C & D AIR 1935 Bombay 186 and AIR 1939 Rangoon 361 discussed. i Muhammad Saleem, Senior Advocate, Supreme Court, and Mr. Munir Alrmad Bhatti, Advocate, Supreme Court, for Appellant (in Cr.A. No.l9(S) of 1989). MaUk Rah Nawaz Noon, Advocate, Supreme Court, for Appellant (in Cr.A. No.20(S) of 1989). Qad Muhammad Saleem, Senior Advocate, Supreme Court for Appellant (in Cr.A No.21(S) of 1989). Hafiz S.A. Rehman, Advocate, Supreme Court, for State (in all appeals). Dates of hearing: 1 and 2-2-1993. JUDGMENT Ajmal Mian, J.- The above three appeals are with the leave of this Court and are directed against the judgment dated 22-12-1988 passed by a Division Bench of the Federal Shariat Court in Criminal Appeals Nos. 194/1 of 1987, 266/L of 1987 and 311/L of 1987, filed by the present three appellants in the above three appeals .against the following convictions and sentences recorded by the learned Special Judge Customs, Lahore, Camp at Rawalpindi, in Special Case No. 154/4 of 1986:- "72. Accordingly I convict all the three accused namely; Harriid Hasnain, Tahir Mahmood Butt and Munawar Hussain under item (8) sub-section (i) of Section 156 read with Section 178 of the Customs Act, 1969 and under Article 3 of Prohibition (Enforcement of Hadd) Order, 1979, I find that there is no mitigating circumstance in this case. All the three accused are sentenced to ten years rigorous imprisonment each u/s 156 (i)(8) read with Section 178 of the Customs Act, 1969, and for five years each under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979. Both the sentences shall run concurrently. All the three accused are further sentenced to pay a fine of Rs. 1,00,0007- (one lac) each and in default of payment of this amount, to undergo imprisonment for a further period of six 1 months each. The accused person shall be entitled to the benefit u/s 382-BCr.P.C." The learned Judges of the Division Bench of the Federal Shariat Court by the above judgment dismissed the aforesaid appeals and maintained the above convictions and sentences. 2. The brief facts are that on 14-12-1983 Raza Muhammad Qureshi (PW-24) smuggled three and a half kilograms of heroin concealed in the bottom of two suit cases from Islamabad Airport to Norway i.e. one brown and the other green. When : he reached at Oslo Airport Norway on 15-12-1983, he was arrested. He was tried and sentenced to 10 years R.I. by the Oslo Court. During the investigation it was revealed that some other persons from Pakistan were also involved in the smuggling of heroin, namely, inter alia the present three appellants. Mr. Kristan Nicolaisen, Public Prosecutor, Oslo Norway (PW 19) reported the matter in writing to the Director General, Federal Investigation Agency, Islamabad (Exh. jPW 19/1). Upon receipt of the same, F.I.R. (Ex.PW 26/1) was recorded at Special Investigation Unit/FIA, Islamabad . After investigation, as many as six challans ;were submitted inter alia against the present appellants, namely, Challans Nos. 1, j2, 3, 4, 5 and 6. It may be pertinent to state that Challan No.4 related to the present case, whereas the other challans pertained to other smuggling transactions, which are not the subject matters of the present appeals and which, according to the learned counsel for the appellants, resulted into acquittal. Be that as it may, the prosecution case in respect of the above Challan No.4 was that in November, 1983, ippellant Hamid Hasnain asked Raza Muhammad Qureshi (PW 24) to go to the louse of appellant Tahir Mahmood Butt. It was alleged that when Raza Muhammad Qureshi went there, the above two appellants alongwith Abdullah Jan (absconder) Vere present. They told him that he would be given an attache case containing heroin, which he should take to Norway. They offered to pay him Rs.1,00,000/-, air ticket and $ 1000. It was further alleged that appellant Tahir Mahmood Butt on tth or 7th December, 1987, sent for Raza Muhammad Qureshi (PW 24) and gave U his house two suit cases. He allegedly told him that one of the two suit cases of brown colour contained two kgs. of brown heroin belonged to him, Hamid Hasnain and Abdullah Jan, absconder. He also told him that the second attache case of green colour had one and a half kgs. of white heroin, which belonged to appellant Munawar Hussain alias Bobi, who would later on give him direction for its disposal. Appellant Tahir Mehmood Butt also allegedly told the above witness that somebody would pay him 1,20,000 Krowns in Norway . After that, the above witness took the two suit cases containing heroin to his house. Later on, Hamid Hasnain allegedly gave him Rs.30,000/- for purchase of air ticket. On 9-12-1983 appellant Munawar Hussain met him and enquired from him if he had been given his attache case by appellant Tahir Mahmood Butt, to which the above witness answered in the affirmative. It was also alleged that appellant Tahir Mahmood Butt then told the above witness that on next Sunday, Monday or Tuesday between 12 noon and 1.00 p.m., a person named Mr. Knut would meet him at Sentrurn Cinema, Oslo, and on his scratching head, Mr. Knut would approach him and would address him by remarking "Hullo Ram" and after the confirmation, the witness shoul.d give him green colour attache case who would in return pay him 1,20,000/- Krowns. It was also alleged that appellant Tahir Mahmood Butt directed the above witness to deliver the brown colour attache case to Muhammad Nawaz in Moss, Norway. It was further alleged that Tahir Mahmood Butt appellant, with the help of a Customs Officer, got the witness cleared at Islamabad Airport on 14-12- 1983 for Oslo Airport in Norway by P.I.A. It was also alleged that appellant Hamid Hasnain and Abdullah Jan (absconder) were also present at the Car Park at the Airport. On arrival at the Oslo Airport, the Airport Authorities detected the heroin contained in the above suit cases. They detained the above witness, his wife and a minor daughter. However, subsequently his wife and daughter were released. He was formally arrested and after prosecution, he was convicted and sentenced, as stated above, for 10 years by Oslo Court. His statement was recorded by P.W. Safdar Malik in Oslo Jail, where he identified the voices of Tahir Mahmood Butt and Munawar Hussain alias Bobi when spools were played, which he also identified before the trial court. 3. After completion of the investigation, the above challans were submitted. At the trial, the prosecution examined as many as 27 witnesses, namely, P.W.I Mukhtar Ahmed, tailor master of appellant Munawar Hussain aliax Bobi, who deposed that from his telephone, the above appellant used to make telephone calls outside the country; P.W.2 Muhammad Younas Malik, Manager, UBL Tehsil Bazar Sialkot, who produced accounts of the appellant Munawar Hussain; P.W.3 Ashfaq Ali, husband of Mrs. Absar Ashfaq, who produced telephone bills containing overseas calls; P.W.4 Muhammad Qadeer, recovery witness from appellant Munawar Hussain to the memo of recovery Ex.PG and the documents PF/1 to PF/4; P.W.5 Khalid Sher Khan, Sub-Manager, Habib Bank Limited, Cantt: Branch, Rawalpindi, where appellant Tahir Mahmood Butt was acting as the Manager, who produced 15 telephone bills containing details of the foreign calls under memo Ex.PH and copies of telephone bills Exh.PH/1 to PH/15; P.W.6 Muhammad Alam Bajwa, 2nd Officer, United Bank Limited, Pul Aik Branch, Sialkot, who also brought the statements of account of appellant Munawar Hussain Exh.PJ/1 to PJ/4 secured under memo Exh.PJ; P.W.7 Muhammad Ijaz of Habib Bank Limited, Cantt: Branch, Rawalpindi, who was declared as hostile; P.W.8 Mushtaqur Rehman, a private person, who rented out his house at Rawalpindi to appellant Munawar Hussain at Rs. 1250/- per month, and produced the copies of telephone bills showing foreign calls Ex.PM/1 to PM/13 secured under memo Ex.PN; P.W.9 Sh. Muhammad Din, Handwriting Expert F.I.A., Islamabad, who proved diary pages Exh. Q/l to Q/12 through report Ex. PBB and chart Ex. PZ and PAA; P.W.IO Fauzia Raza, wife of P.W.24 Raza Muhammad Qureshi, who corroborated the statement of her husband, as she had accompanied him from Islamabad to Oslo; P.W. 11 Mrs. Absar Ashfaq, who produced copies of certain telephone bills and corroborated the evidence of the other witnesses; P.W. 12 Raja Muhammad Suleman, Assistant Director FIA, who raided the house of appellant Tahir Mahmood Butt with the permission of the Magistrate Exh.PPC and procured PPC/2 a personal diary Ex.PCC/3 to PCC/16 also personal diary, statement ot telephone bills Exh.PE/1 to PE/38 obtained from P.W. 11 Mrs. Absar Ashfaq vide memo Ex.PE. He also served Section 171 of the Customs Ordinance. 1969. notice Ex.PDD upon appellant Tahir Mahmood Butt: PAN. 13 Muhammad Haneef. Inspector FIA Immigration, Islamabad Airport , who accompanied P.W. Bashir Malik to the office of appellant Hamid Hasnain. Vice President. Habib Bank Limited, Islamabad, and procured documents PEE/1 to PEE'27 under memo Exh.PEE; P.W. 15 Raja Manzoor Elahi, Assistant Director FIA, who took in possession telephone bills Exhs. PH/1 to PH/15 from one Khalid Bashir under memo Exh.PH. He also accompanied Raja Muhammad Suleman to the house of Tahir Mahmood Butt; P.W. 16 Asal Mir, S.I. FIA, who affixed proclamation order of absconsion of Abdullah Jan Ex.PW 16/1 and submitted report Ex.PW 16 B: P.W. 17 Nadir Shah, who was declared hostile; P.W. 18 Ch. Muhammad Afzal. Magistrate 1st Class, Rawalpindi, who issued the search warrants Exh.PW 18 12 in respect of the house of appellant Tahir Mahmood Butt under order Exh.PW 1S 1: P.W. 19 Mr. Kristan Nicolaisen, Public Prosecutor, Oslo Norway, who sent the above report to the Director General, F.I.A. and who produced the photo copy of the judgment of Oslo Court convicting P.W.24 Raza Muhammad Qureshi Exh.PW 19/2 and its translated copy Exh.PW. 19/3; P.W.20 Miss Knapperholen Torun, a Customs Officer, who was posted at Oslo Airport on 15-12-1983 when P.W.24 Raza'Muhammad Qureshi was arrested; P.W.21 Mr. Lars Risan. who was working in the Drug Department in Norway since 1979 and who received information on 15-12-1983 that a Pakistani family would arrive at the Oslo Airport with two suit cases containing heroin; P.W.22 Mr. Steinar Bragstad. Detective Sergeant, Drugs Squad, Oslo Norway, who taped some telephones of Abid Khan, Muhammad Nawaz, Arshad Shah, Khalid Aslam. With the help of the above tape, the above Muhammad Nawaz, Arshad Shah, Khalid Aslam and Manzoor Hussain were arrested; Mr. Oyvind H. Olsen, an officer at the Norwegian Embassy, Islamabad, in July, 1985, but in 1983, he was posted in the Drug Squad, Oslo, and had arrested P.W.24 Raza Muhammad Qureshi at Oslo Airport and so also Mr. Troeber and from whose possession, a note book containing the description of P.W.24 Raza Muhammad Qureshi was recovered, which also contained the name of Bobi and the amount of 1,20,000; P.W.24 Raza Muhammad Qureshi, who is the main witness; P.W.25 Javed Iqbal, brother of P.W.24, who corroborated the latter's evidence; P.W.26 Bashir Ahmad, Director F.I.A. Rawalpindi, who upon receipt of complaint Exh.PW 19/1, recorded F.I.R. Ex.PW 26/1; P.W.27 Malik Safdar Ali, Assistant Director, F.I.A. Rawalpindi, who went to Norway in connection with the investigation and .recorded the statements of witnesses including of P.W. 24 Raza Muhammad Qureshi and his brother Javed Iqbal. 4. The appellants, in their statements under Section 342 Cr.P.C., denied the commission of offence and alleged that they were falsely implicated as they did not accede to the demand of illegal gratification of the F.I. A. staff. 5. The learned Special Judge Customs, Lahore , after hearing the learned counsel for the parties, convicted the appellants and awarded to them the above sentences. The appellants' appeals before the Federal Shariat Court also failed as stated hereinabove. Thereupon, they filed petitions for leave to appeal, which were granted as the Court, after hearing the learned counsel for the appellants, was of the view that it was a fit case for grant of leave. 6. None appeared for Munawar Hussain alias Bobi appellant in Criminal Appeal No.l9(S) of 1989. His appeal was also time barred by 13 days. However, as we were to examine the cases of the other two appellants and as there was a common judgment, we have condoned the delay in the above appeal and have also examined his case on merits. 7. . In support of Criminal Appeal No.20(S) of 1989, Mr. Munir Hussain Bhatti, learned counsel for the appellant Hamid Hasnain, has vehemently urged that the prosecution case is founded on the evidence of an accomplice, namely, P.W.24 Raza Muhammad Qureshi without corroboration on material particulars and, therefore, the conviction and. sentences cannot be sustained. Same was the argument of Qazi Muhammad Salim, learned Sr. ASC for Tahir Mahmood Butt, appellant in Criminal Appeal No.21(S) of 1989. Both have relied upon Illustration (b) of Article 129 of Qanun-e-Shahadat Order, 1984, hereinafter referred to as the Order, which corresponds to Illustration (b) of Section 114 of the late Evidence Act, 1872, hereinafter referred to as the 'late Act'. The above Article 129 provides that "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."The Illustration (b) reads as follows: "(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;" No doubt that the above illustration (b) to above Article 129 of the Order provides that an accomplice is unworthy of credit, unless he is corroborated in material particulars. However, we may point out that the above illustration ot Article 129 of the Order is to be read with Article 16 of the Order, which lays down that an accomplice shall be a competent witness against an accused person except in the case of an offence punishable with Hadd and the conviction is not illegal merely because it proceeds upon the uncorroborative testimony of an accomplice. The above Article 16 of the Order corresponds with Section 133 of the late Act. In other words, in terms of above Article 16, a conviction can be recorded on the basis of evidence of an accomplice but the Court, as a rule of prudence, seeks corroboration in material particulars. 8. The learned counsel for the appellants have also referred to the case of Abdul Qadir vs. The State (PLD 1956 S.C. 407). the case of Muhammad Ayub Khuhro vs. Pakistan, through the Ministry of Interior, Government of Pakistan and two others (PLD 1960 SC 237), the case of Muhammad Nawaz and another vs. The State (PLD 1961 Lahore 880), and the case of Dr. Muhammad fiashir vs. The State (PLD 1971 S.C. 447). In the above first case this Court, while construing Section 133 of the late Act, disbelieved the evidence of two approvers who were uncle and nephew and pointed out that the standard of corroborative evidence cannot be varied in case of approver being educated and apparently respectable if he is no better than a hired assassin. In the second case this Court, while dealing with the evidence of a pardoned accomplice, has observed as under: - "On the merits apart from the statement of Abdullah Khan who is a pardoned accomplice that the appellant came to his show room on 8th of October and asked him to finalize the deal, there is no other evidence of any act or omission by the appellant subsequent to the promulgation of Regulation No.26. Some witnesses have given evidence that when they negotiated for the purchase of the car from the Car Mart Abdullah Khan told them that the car belonged to Khuhro and could not be sold for less than Rs.60,000/-, but it cannot possibly be contended that these statements are admissible evidence against the appellant or that they amount to independent corroboration. And in the absence of such corroboration the prosecution took a grave risk in separating the charge under the Hoarding and Black market Order from that under Martial Law Regulation No.26. An officer of the Special Judge's experience could not be unaware that law requires corroboration of an accomplice by "independent evidence", and that an accomplice's own previous statements or the confession of a co-accused is not corroboration by independent evidence. There was, however, not one word in the judgment on this vital point for the consideration of the confirming authority." In the third case, a learned Single Judge of the erstwhile High Court of west Pakistan held that conviction cannot be based on evidence of witness without independent corroboration if his status is no better than an accomplice. Whereas in the fourth case, this Court, while dilating upon the evidentiary value of an approver's evidence, has observed that as a rule of prudence which has almost hardened into a rule of law, it is dangerous to act on the uncorroborated testimony of an approver who is a self-confessed criminal. 9. On the other hand, Hafiz S.A. Rehman, learned counsel for the State, has referred to the case of Jan Muhammad vs. The State (1968 P.Cr.L.J. 1625), in which a learned Single Judge of the erstwhile High Court of West Pakistan at Karachi, has held that conviction based upon testimony of an accomplice is not illegal in view of Section 133 of the late Act. 10. There cannot be any cavil with the submission that it is now well settled proposition of law that the Court, as a rule of prudence, seeks corroboration on material particulars by independent corroborative piece of evidence in case the main witness is an approver or an accomplice, though in terms of Article 16 of the Order which corresponds to Section 133 of the late Act, even conviction can be founded on the evidence of an accomplice without any corroboration if the Court is satisfied with the truthfulness of his evidence. In the present case, the learned trial court has convicted the present appellants not solely on the evidence of the accomplice P.W. 24 Raza Muhammad Qureshi, but has in detail, referred to the corroborative pieces of evidence on material particulars. The Federal Shariat Court also has addressed itself to the above aspect. 11. It was also urged by both the learned counsel that since P.W.24 Raza Muhammad Qureshi was neither pardoned under Section 337 Cr.P.C. nor he was discharged under Section 494 Cr.P.C., he was not a competent witness even as an accomplice. To re-inforce the above submission, reliance was placed by them on the case of Keshav Vasudeo Kortikar vs. Emperor (A.I.R. 1935 Bombay 186), in which a Division Bench, while construing Sections 337 and 497 Cr.P.C., has inter alia held that Code of Criminal Procedure gives certain power under which the evidence of an accomplice can be made available and that he can be granted conditional pardon by the Magistrate under Section 337 Cr.P.C. or the Public Prosecutor, with the consent of the Magistrate, can withdraw the charge under Section 494 CixP.C. It has been further held that the above power ought to be exercised where the prosecution considers that the evidence of an accomplice is necessary and the Police have no right to take upon themselves not to charge a person against whom they have evidence because they required him as a witness and that where the above improper course is adopted, the evidence of the accomplice so obtained is entitled to very little weight. 12. On the other hand, Hafiz, S.A. Rehman, learned counsel for the State, has referred to the case of.Nga Thein Pe vs. Tlie King (A.I.R. 1939 Rangoon 361). In which a Division Bench of the Rangoon High Court, while referring to illustration (b) of Sections 114 and 1 133 of the late Act, has held that there is nothing improper in tendering an accomplice as a witness apart from any question of pardon and that such a person is a competent witness and there is no'irregularity in not sending up for trial every person against whom any suspicion appears to exist. It has been further held that it may on occasion be desirable to include evidence of an accomplice for what it is worthy without tendering him a pardon. It has also been held that the question of weight of such a person's evidence is of course important since he will naturally have a strong motive for minimising his own part in any criminal transaction and thus his evidence must be treated with great caution than that of an established approver. 13. Hafiz S.A. Rehman has also again invited our attention to the case of Jan Muhammad vs. The State (Supra), (relied upon by him) and has pointed out that the learned Judge therein highlighted the factum that the case of Keshav Vasudeo Kortikar vs. Emperor (Supra) does not lay down any broad proposition contrary to the above provision of Section 133 of the late Act. 14. We may observe that there is no doubt that P.W.24 Raza Muhammad Qureshi was an accomplice to the commission of the offence which was the subject matter of prosecution in the present case. However, at the same time, he cannot be equated with an ordinary accomplice, as for the offence in question, he was convicted by Oslo Court, Norway , and was awarded 10 years R.I. He was brought to Pakistan on the basis of the request made by the Government of Pakistan while he was serving out the above sentence of 10 years R.I. as in the absence of his evidence, the present appellants could not have been convicted. He was to be taken back to the Prison in Norway for serving out his above remaining sentence. In the above background, in our view, the question of pardoning him under Section 3371 Cr.P.C. or discharging him under Section 494 Cr.P.C. was not very much! relevant. 15. The learned counsel for the appellants also with vehemence invited our attention to the factum that P.W.24 Raza Muhammad Qureshi, not only before the Court in Oslo but before the trial court in the present case, made contradictory statements, for example, in his earlier part of deposition he stated that he was class/school fellow with the appellant Hamid Hasnain, he offered to sell his flat of Karachi to Hamid Hasnain, the amount of Rs.30,0007- was paid by Hamid Hasnain for the purchase of air ticket, but he was unable to adhere to the above statements when he was cross-examined. It was also pointed out by them that he admitted that he was dismissed from bank's service on account of embezzlement, though originally his version was different. He also admitted the factum that he entered into Germany and Norway without any Visa. He further admitted that he suspected that Hamid Hasnain and Tahir Mahmood Butt caused his dismissal from the bank service. 16. We may observe that we have kept the above facts in mind while considering P.W.24 Raza Muhammad Qureshi's evidence. We have examined it with care and caution, but we are satisfied that the conviction of the present appellants, on the basis of the material on record, has been properly recorded by the trial court and maintained by the Federal Shariat Court . 17. We may observe that the trial court has thoroughly discussed the evidence and has drawn correct inferences therefrom. However, we may refer the same in brief in respect of each of the appellants. The conviction ot Munawar Hussain alias Bobi appellant is founded not only on the evidence of P.W.24 Raza Muhammad Qureshi but is corroborated by the following pieces of corroborative evidence: - (i) According to P.W.24 Raza Muhammad Qureshi, he was directed to deliver the green colour attache case belonging to Munawar Hussain alitis Bobi containing one and a half kilograms of white heroin to a person named Mr. Knut at Sentrum Cinema Oslo between 12.00 noon to 1.00 p.m. on Sunday, Monday or Tuesday. He was further told that he should scratch his head, whereupon Mr. Knut would come to him and would say "Hullo Ram". Upon hearing the above confirmatory remark, he should deliver the above green colour attache case upon receipt of 1,20,000 Krowns. The above Mr. Knut was arrested, his real name was Mr. Gorge Troeber, from him a diary was recovered which contains the description of P.W.24 Raza Muhammad Qureshi, the above remark "Hullo Ram" and the name of Munawar Hussain as Bobi, and the figure of the above amount of 1,20,000 Krowns. The above diary is on record which was produced through P.W.23 Mr. Oyvind Oslen, Attache to Royal Norwegian Embassy at Islamabad, who was Detective Inspector, Oslo Drug Squad Police before his above diplomatic assignment. (ii) Munawar Hussain alias Bobi had taken on rent an annexe of the bungalow from P.W.8 Mushtaqur Rehman, which had telephone bearing No.64257. The above witness has produced the copies of the telephone bills, which inter alia show that Munawar Hussain had phoned some one in Oslo. The above diary recovered form Mr. Knut also indicated that he had above telephone number against the name of Bobi. (iii) P.W.25 Javed Iqbal, younger brother of P.W.24, besides deposing that P.W.24 Raza Muhammad Qureshi had informed his family members including him before leaving for Oslo that the two attache cases belonged to the present appellants, has stated that when he contacted appellant Tahir Mahmood Butt after having come to know that his brother was arrested at Oslo Airport, Tahir Mahmood Butt sent for Munawar Hussain, for whom he waited for some time but when he was going back, he met Munawar Hussain down-stairs who enquired from him, whether he was the brother of Raza Muhammad Qureshi, which he replied in the affirmative. Munawar Hussain would not have come if he would have no connection with the above heroin. (iv) The diaries which have been recovered from the appellant Tahir Mahmood Butt contained the name of Munawar Hussain alias Bobi and also indicate the payment of certain amounts. Munawar Hussain belongs to Sialkot and, therefore, he could not have any connection with Tahir Mahmood Butt if he would not have been involved in the above transaction. 18. As regards Hamid Hasnain, the appellant in Criminal Appeal No.20(S) of 1989, it may be observed that the testimony of P.W.24 Raza Muhammad Qureshi is corroborated by the evidence of P.W.25 Javed Iqbal, who had deposed that he went to the Airport to see off his brother, P.W.24 Raza Muhammad Qureshi, his wife, P.W.10 and their child, and when his brother and the appellant Tahir Mahmood Butt came out after reporting for boarding, they went towards the parking lot to a car in which appellant Hamid Hasnain was sitting with the absconding accused Abdullah Jan and another person. It was urged by Malik Rabnawaz Noon, learned counsel for the above appellant, that P.W.25 in his police statement had not stated so but we have verified from the original record and found that he had stated so. The above appellant had no occasion to go to the Airport alongwith the absconding accused Abdullah Jan if he had no interest in the above heroin. The above piece of evidence, in our view, furnishes the required corroboration, keeping in view that the brown attache case belonged to above three persons, namely, Hamid Hasnain, Tahir Mahmood Butt and the absconding accused Abdullah Jan as per prosecution case. 19. As regards appellant Tahir Mahmood Butt in Criminal Appeal No.21(S) of 1989, it may be stated that there is overwhelming corroborative evidence in the following form:- (i) The recovery of diary Exh.PCC/1 from him containing the fddress of one Nawaz at Moss Norway, to whom brown colour attache case was to be given as per direction of the above appellant, according to P.W.24 Raza Muhammad Qureshi. The above diary also contains besides the name of Bobi, of Manzoor Hussain who was convicted for smuggling of heroin as per P.W.22 Mr. Steiner Bragstad, whose telephonic conversation in Pakistan was taped by the above witness alongwith the other Pakistanis, namely, Abid Khan, Arshad Shah, Khalid Aslam, who were also convicted and sentenced. The above diary was proved inter alia by P.W. 9 Sh. Muhammad Din, handwriting expert, F.I.A. (ii) Telephone bills showing that Tahir Mahmood Butt had phoned persons in Norway. (iii) P.W. 10 Fauzia Raza and P.W.25 Javed Iqbal have deposed that when P.W.24 Raza Muhammad Qureshi was going to Oslo , the above appellant also came at the Airport and arranged the clearance of the luggage by the Customs Authorities. (iv) P.W. 11 Mrs. Absar Ashfaq, who has stated that after she was phoned by P.W. 10 Fauzia Raza from Oslo, that P.W.24 Raza Muhammad Qureshi was arrested at the Airport for smuggling heroin, she contacted the appellant Tahir Mahmood But, who gave telephone number of one Rashid at Oslo for contacting him to find out about her brother. (v) C.W. Sheikh Fayyazi, the incharge of Flashmans Hotel, had deposed that the absconding accused Abdullah Jan stayed in their hotel from 1-11-1983 to 7-11- 1983. The appellant Tahir Mahmood Butt of Habib Bank Limited told him that Abdullah Jan and his friend were the guests of the bank and they should be allowed discount. The bill produced also indicates that factually discount was given and Habib Bank's name was mentioned. (vi) There are also spools indicating that the present appellant had conversation with Nawaz at Oslo. Their voices were identified by P.W.24 Raza Muhammad Qureshi. Their conversation was taped and recorded by above P.W.22. 20. The learned counsel for the appellants have also urged that since above P.Ws 10, 11 and 25 were related to P.W.24 Raza Muhammad Qureshi, they being interested witnesses, cannot furnish the required corroboration. In this regard, we may observe that simpliciter the factum of relationship inter se between witnesses or between a complainant and witnesses does not make witnesses interested witnesses. An interested witness is a person who has some personal motive to implicate an accused person falsely. In the present case the above witnesses cannot be treated as interested witnesses simpliciter for the reason that they were related to P.W.24, who was not even charged for the offence in Pakistan. They had no motive to implicate the appellants falsely. They seem to be natural witnesses to the facts what they have stated. We may observe that the Courts cannot expect in cases of smuggling of narcotics, the evidence of the nature, which is generally available in an ordinary criminal case, as the persons who indulge in the above nefarious activities are more organized, affluent and influential and, therefore, generally, they manage to cause dents in the prosecution evidence. In such like cases, which are not only damaging the image of Pakistani nation in the comity of nations, but are making our young generation addicts to narcotic, the Court's approach should be dynamic and they should overlook technicalities in the larger interest of the country and the public at large. The Court is to consider the entire material on record as a whole and if it 'is convinced that the case is proved, conviction should be recorded. In our view, the cases of the above three appellants are interlinked, they have arisen out of one transaction and, therefore, the entire evidence on record in respect of the above three appellants is to be evaluated and considered together. 21. The two Courts below have considered liie entire evidence on record and have concluded that the prosecution succeeded in proving the case of the appellants beyond reasonable doubt. We have also examined the entire evidence on record and we are also of the view that the same is sufficient to sustain the above convictions .and sentences against the appellants. The appeals are, therefore, dismissed. (MBC) (Approved for reporting) Appeals dismissed

PLJ 1993 SC 279 PLJ 1993 SC 279 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ, ABDUL QADEER CHAUDHRY AND SALEEM AKHTAR, JJ WAPDA, LAHORE ~ Appellant versus MUHAMMAD RIAZ BUTT — Respondent Civil Appeal No.94 of 1989 (also C.A. No.95 of 1989) accepted on 23.1.1993 (approved for reporting on 31.3.1993) [On appeal from judgment dated 31.1.1988, of Federal Service Tribunal, in Appeal Nos. 142(R) and 143 (R) of 1987.] WAPDA Efficiency & Discipline Rules, 1978 R. 12 — WAPDA employees— Removal from service of -- Reinstatement ordered by Service Tribunal - Challenge to -- Contention that Tribunal fell into error in not discussing case nor giving reasons for not upholding decision of appellant which was before Tribunal in form of departmental files and documents or by summoning further record from appellant — Further contention that charges against two respondents are much more serious than what Tribunal thought and if record would have been perused, result of appeals before Tribunal might have been different - Learned counsel for respondents could not dispute proposition that Tribunal could have remanded case for writing of a better and detailed order and/or for rehearing of matter and fresh decision — Appeals accepted and case remanded to Authority for decision afresh. [Pp 280 & 281]A&B Mr. Muhammad Sadiq Abbasi, Advocate, Supreme Court, and Khan Imtiaz Muhammad Khan, AOR for Appellant (in both appeals). Mr. Kowkab Iqbal, AOR for Respondent (in both appeals). Date of hearing: 23.1.1993. JUDGMENT Muhammad Afzal Zullah, CJ. -- In these service appeals through leave of the Court the leave grant order reads as follows: - "Leave to appeal has been sought by the WAPDA , against the acceptance of the service appeals of the two respondents in these two petitions, by the Federal Service Tribunal; whereby their removal from service was held illegal and has been set aside. : Learned counsel stated that the respondents were exonerated by the Executive Engineer at the initial stage. However, in exercise of suo moto powers under Clause 12 of the WAPDA E&D Rules, 1978, the WAPDA "Authority" examined their cases, set aside the orders of exoneration and passed instead orders of removal. The Tribunal while accepting the respondents' appeals made the following observations:- "Surprisingly, reasons for reversing the order of the Superintending Engineer exonerating the appellant were not recorded for imposing the penalty of removal from service. Rule 12 of the WAPDA E&D Rules, 1978 does give power to the Authority to revise an order passed by the subordinate authority but it does not confer arbitrary power on the Authority to revise or reverse an order of the subordinate authority without mentioning the reasons. The impugned order does not indicate whether the report of the inquiry officer was considered while reversing the order of the Superintending Engineer. We are of the opinion that the impugned order was passed arbitrarily and cannot be maintained. Learned counsel tried to show that the entire file relating to the exercise of revisional jurisdiction by the "Authority' was before the Tribunal. It contained the no'mg rjr.d recording of opinions and decision by the "Authority" from time to time. Accordingly the short office orders reproduced in the impugned judgment, should not have been read in isolation of what the file contained. If they would have been read with the Office Orders, the decision of the Tribunal would have been different.After hearing the learned counsel in support of his contention we consider it a fit case for grant of leave to appeal, inter-alia, to examine; whether in case the observations made by the Tribunal are upheld in the context that the "Authority" committed a technical error in not repeating the material contained in the files in the orders themselves, would it not have been necessary or at least proper for the Tribunal to remand the case to the "Authority" for fresh decision and/or re-writing of proper judgment. Order accordingly". Learned counsel for the appellant has reiterated the same point which was noted for examination in the above reproduced order. In addition the learned counsel for the appellant has pointed out that the learned Members of the Tribunal ,. | also fell into same error which they had purportedly detected in the order of the appellant; namely, that the case was not discussed as an appellate forum could and should have done nor any reasons were given for not upholding the decision of the appellant on the material which was before the Tribunal in the form of departmental files and documents and/or by summoning further record from the appellant. Learned counsel brought to our notice that the charges against the two respondents who are brothers inter-se are much more serious than what the Tribunal thought. If the records would have been perused the result of the appeals before the Tribunal might have been different. Learned counsel for the respondents while trying to show that enough i material has not been placed on the files of this Court from which the nature of the | charge and material in support thereof could be discovered nevertheless could not! dispute the proposition that the Tribunal could have remanded the case for writing I of a better and detailed order and/or for re-hearing of the matter and fresh decision, i This court had not required the appellant to 'produce the entire evidence and \ material against' the respondents in this Court. One reason could be that no indication was given in the leave grant order that this Court would for the first time' itself in this case decide factual controversy on merits as the Tribunal and the! appellant did not examine the merits in detail. The need for fresh decision and detailed order by the appellant not having been seriously disputed, we in the light of the foregoing discussion allow these appeals while setting aside the impugned orders and remand the matter to the Authority for decision afresh. The respondents! shall be afforded opportunity to appear, produce evidence and make statements as j well as submit oral and written arguments, if need be. (MBC) (Approved for reporting) Appeals accepted.

PLJ 1993 SC 281 PLJ 1993 SC 281 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ, SALEEM AKHTAR AND WALI MUHAMMAD KHAN, JJ Ch. MUHAMMAD YASIN and 2 others — Appellants versus Ch. MUHAMMAD ABDUL AZIZ — Respondent Civil Appeal No.41-Q of 1990, dismissed on 17.1.1993 (approved for reporting on 31.3.1993] [On appeal from judgment dated 23.4.1990, of High Court of Baluchistan, Quetta , in C.M. Appeal No.48 of 1985] Civil Procedure Code, 1908 (V of 1908) S.20(c) — Recovery of money — Suit for — Whether civil courts at Quetta had jurisdiction — Question of — Bundle of essential facts which comprise cause of action, undoubtedly contains most essential pivotal element of supply of coal at Quetta from where it was to be despatched to Faisalabad — It is correct that receipt of coal at Faisalabad is an important element for cause of action but that also is one single element and it will also be treated as an essential fact amongst other facts constituting bundle of essential facts as forming cause of action -- Thus a part of cause, at least, arose at Quetta also — Held: There is no infirmity in impugned judgment of High Court, legal or otherwise •- Appeal dismissed. [P.283JA&B Raja M.Afsar, AOR for Appellants. Mr. S.A.M.Quadri, AOR for Respondent. Date of hearing: 17.1.1993. JUDGMENT Muhammad Afzal Zullah, CJ.-- This direct appeal on the acceptance of the respondent/plaintiffs' Civil Miscellaneous appeal by the Baluchistan High Court raises a question regarding territorial jurisdiction of the Civil Courts at Quetta. As stated in the impugned judgment the respondent had filed a suit for recovery of about IJj lac as price of coal supply to the appellants. It was pending before a learned Additional District Judge Quetta when the plaint was returned to the respondent to be presented before a competent Court of jurisdiction. Courts at Quetta, it was said, had no territorial jurisdiction. The coal was to be supplied at Faisalabad , therefore, it was thought that the Faisalabad Courts ( Punjab ) had the territorial jurisdiction. On appeal before the High Court after noticing sub-clause (c)'of Section 20 C.P.C. to the effect that a Civil Court where cause of action whole or in part arises, shall also have jurisdiction to try a suit, it was observed as follows: - " It is clear that as per Section 20(c) a suit is to be instituted in a court within the local limits of whose jurisdiction the cause of action wholly or in part arose hence the only question which is very pertinent is whether any cause of action as a whole or in part accrued to the plaintiff at Quetta in the case in hand ? It is an admitted fact that the plaintiff who is resident of Quetta and has his business at Quetta reached an agreement with the defendants who are residents of Faisalabad for supplying them coal. There is also no dispute that coal used to be despatched through a Goods Company at Quetta to Faisalabad and after receiving the same payment had to be made. There would hardly be any difficulty in concluding that at least part of cause of action accrued at Quetta." Learned counsel has admitted the simple crucial fact in this case to determine the territorial jurisdiction, that in reality the coal supply at Quetta was to be despatched further to Faisalabad . Without the proof of this supply at Quetta learned counsel further agreed that respondent/plaintiff could not have succeeded in the suit. The bundle of essential facts which comprises the cause of action in this case amongst other elements relating to Quetta, undoubtedly contains the most essential pivotal element of the supply of coal at Quetta from where it was to be despatched to Faisalabad. The element of place of agreement also is relevant as an essential part of the bundle of facts. But the question of supply being very important in the • context of entire circumstances of this case, the same is also a very essential fact. We do agree with the learned counsel for the appellants that receipt of coal at Faisalabad is an important element in the transaction and the trial of the suit in that' behalf but that also is one single element. It will also be treated as an essential fact i amongst the other facts constituting bundle of essential facts, as farjning the cause! of action. Thus a part of cause at least arose, at Quetta also. In the light of the foregoing discussion we have not been able to find any infirmity in the impugned judgment of the High Court, legal or otherwise. This appeal, therefore, is dismissed. There shall be no order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 283 PLJ 1993 SC 283 [Appellate Jurisdiction] Present: SAAD SAOOD JAN AND SAJJAD ALI SHAH, JJ MUHAMMAD AMIN -- Appellant versus MAQBOOL AHMAD —- Respondent Civil Appeal No. 1142 of 1990, dismissed on 6-12-1990 [On appeal from order of Lahore High Court, Bahawalpur Bench, dated 5-3-1990, passed in R.S.A No.5/§WP of 1989.] Pre-emption Pre-emption — Suit for — Suit decreed and decree upheld upto High Court -Challenge to — Pre-emptor cannot be non-suited on allegation of collusion unless it is established by uncontrovertible evidence and there is strong proof in support thereof ~ Held: There is no flaw or legal infirmity in order of High Court dismissing second appeal on ground that no interference was called for in concurrent findings of courts below ~ Appeal dismissed. [P288]A&B PLJ 1984 SC 360 and NLR 1992 SCJ 118 rel. PLJ 1984 SC 420 distinguished. Mr. Zahid Hussain Khan, Advocate, Supreme Court, instructed by Rana Maqbool Ahmad Qadri, AOR for Appellant. Ch. A. Waheed Salim, Senior Advocate, Supreme Court, instructed by Mr. M.A. Qureshi, AOR for Respondent. Date of hearing 6.12.1992. JUDGMENT Sajjad Ali Shah, J.- This appeal with leave of the Court is directed against order dated 5-3-1990 of learned Single Judge of Lahore High Court, Bahawalpur Bench, whereby R.S.A. No.5-89/BWP is dismissed in limine and in the result judgment of the trial Court decreeing suit of pre-emption of respondent before us is upheld against which appeal was dismissed by the first appellate Court of District Judge, Bahawalnagar. 2. Briefly stated the relevant facts are that Muhammad Shaft sold agricultural land ad-measuring 100 Kanals in Mauza Sharif Din Teshsil and District Bahawalnagar, to his brother Muhammad Amin vide registered sale deed dated 17/5/1977 for Rs.10,000/-. Maqbool Ahmad son of vendor filed Suit No.46/82 against his uncle and vendor Muhammad Amin for possession of suit land through pre-emption on the ground that he is son of vender. It was claimed in the plaint that suit land was sold for Rs.8,000/- and a fictitious price of Rs.10,000/- wasshown in the sale deed. Suit was resisted and in the written statement allegations of plaintiff were controverted and preliminary objections were raised to the effect that suit land was exempt from pre-emptipn and suit was benami and defendant was entitled to Rs.2,500/- on account of incidental charges. Additionally it was mentioned that suit was barred by limitation and plaint was not thumb-marked by mother of minor plaintiff. Keeping in view the pleadings of the parties, following issues were framed:- 1. Whether the suit land is exempt from pre-emption for the reasons stated in preliminary objections No. 1 & 3 of written statement? OPD 2. Whether the suit is benamil OPD 3. Whether the defendant is entitled to recover Rs.2500/- alleged to have been spent by him as incidental charges'? OPD 4. Whether defendant has effected improvements on the suit land? i,f so, with what effect and to what extent? OPD. 5. Whether the plaintiff has superior right of pre-emption? OPP 6. Whether the plaintiff has waived his right of pre-emption? OPD. 7. Whether a sum of Rs. 10,0007- was fixed in good faith or actually paid as sale price of the suit land? OPD. 8. If issue No.7 is not proved, what was the market value of the suit land at the time of its sale? OPPs. 8-A Whether the plaint is liable to rejection under Order 7 rule 11 CPC? OPD. 8-A/l Whether the suit is time-barred? OPD. 8-B Whether the plaint is not thumb-marked by the mother of the minor-plaintiff? OPD. 9. Relief. 3. After evaluation of evidence produced by the parties learned Civil Judge decreed the suit of plaintiff for possession through pre-emption in lieu of Rs. 10.000/-. Petitioner Muhammad Arnin defendant in the suit filed Civil Appeal No.30/89 which was dismissed by learned District Judge, Bahawalnagar, vide judgment dated 11-2-1989. Muhammad Amin then filed Second Regular Appeal in the High Court which is dismissed in limine as stated above. 4. This Court granted leave to.consider contentions which are reflected in the paragraph which is reproduced as under: - "In support of this petition it is contended that the suit brought by the respondent was a collusive one and intended entirely for the benefit of his father. This plea was also convassed by the petitioner before the Courts below but was rejected. It is argued by the learned counsel for the petitioner that in rejecting the plea of collusiveness set up by him the Courts below have overlooked a very material fact,,, that is, the respondent was a minor and had admittedly, no source of income of his own; it was, therefore, clear that the suit had in fact been brought by the respondent's father who wanted to renege on the sale. Reliance is also being placed on the judgment of this Court in Naseer Ahmad vs. Arshad Ahmad (PLJ 1984 S.C366)." 5. It appears from the judgment of the trial Court that Issue No.2 was whether the suit was benatni and burden of proof was placed upon defendant in the suit. 1 Trial Court noted the contention that defendant was a minor and had no means of income and his father Muhammad Shafi, the vendor was financing him for the suit and in such circumstances it was a benatni suit for the benefit of the vendor. In support of this contention no positive evidence was produced by the defendant. As burden was upon him trial Court concluded that defendant could not be allowed to succeed on the basis of surmises and conjectures. Plaintiff as son of vendor had independent right to pre-empt the suit land and he exercised such right through his mother for his own benefit. In the result issue was answered against the defendant. Before the first appellate Court defendant had moved an application for additional evidence and wanted to prove that Rs.65,600/~ had been paid and the parties being real brothers only nominal amount of Rs. 10,000/- was shown in thtfsale deed. He made second application for permission to amend written statement; third application for referring some thumb mark to Finger Prints Expert and fourth application for appointment of local Commissioner to assess the market value of the suit land. These applications were rejected on the ground that they are unnecessary and appeal could be disposed of on the basis of evidence brought on the record. However, on the issue of benami, the first appellate Court observed that right of pre-emption could not be defeated merely on the ground that the funds had to be provided by someone-else. In the High Court this contention has been dealt with in the paragraph of the judgment which is reproduced as under: - "In passing, half-hearted attempt has been made to urge that the plaintiff was acting Benami and was even estopped from exercising the right of pre­ emption. These are two mutually destructive pleas and still they were sought to be urged on the premises that the preemptor happens to he a son of the vendor, though grown up, yet. a minor. It was conceded that there was no statement or conduct amounting to some representation proved as capable of being attributed to him. But it was urged that he had remained present at the time of sale without evincing any interest in the transaction whereabout he did not put forward any claim at all." 6. It appears that in the trial court pleas were taken that plaintiff was minor and also that he was present at the time of sale and had waived his right. Both these pleas are incongruous and defeat each other. If plaintiff was minor then he could not enter into contract and, therefore, could not waive his right. In the leave granting order is noted case of Niiseer Ahmad Vs Arshad Ahmad (PLJ 1984 S.C 366) cited in support of contention of defendant/vendee that suit is collusive tiled by minor son for the benefit of father and financially supported by latter. Facts of the reported case are that suit land was purchased by Arshad Ahmad for Rs. 16000/- vide mutation from vendor, whose collateral Naseer Ahmad filed suit of pre­ emption and claimed that original sale price was Rs.8,000/-. Suit was resisted by vendete on the ground that offer of sale was made to the pre-emptor through Punchayat, which was refused by him. Defence plea was supported by six D.Ws while on the other hand pre-emptor examined only himself. Trial Court decreed the suit and did not accept defence plea on the ground that notice under Section 19 of the Punjab pre-emption Act, 1913 was not given by the vendor. First appeal of vendee was dismissed by the District Judge but his Regular Second Appeal was accepted by the High Court reversing findings of the two Courts below and dismissing the suit. It was held that it was incorrect to urge that right of pre­ emption could not be waived at all till such time as it came into existence. It was also held that plaintiff having motive to create hurdle in way of vendee for his own benefit or to compel, vendee to dish out money as a price for withdrawal of suit by him was -tot entitled to relief through Courts of law. Judgment in the reported case is not attracted to the facts of the instant case for the reason that in the instant case whiie pre-v-mptor is son of vendor, vendee is also brother of vendor, hence both parties are very closely related to each other, therefore question of motive to compel vendee to dish out more money does not arise. 7. Another case cited on behalf of the appellant before us is Imam Vs Saifur Rahman (PLJ S984 S.C 420), which is also distinguishable for the reason that in that case only leave was granted to consider whether facts and circumstances of that case amounted to fraud on statute and misuse of process of Court. In that case suit land was sold by two vendors. Minor son of one vendor filed suit for pre-emption through his mother as guardian-ad-litem and son of other vendor also joined but later withdrew from the case. Suit was decreed and appeal and R.S.A. were dismissed. In such circumstances, leave was granted to examine the contention that Muhammad Iqbal had himself got the suit filed in collusion with his wife for his own benefit using the name of his minor son for the purpose. 8. Before us on behalf of the respondent it is urged that evidence recorded before the trial court was properly appreciated and evaluated and consequently the suit was decreed against which appeal in the District Court and Second Appeal in the High Court have been dismissed. In the suit on behalf of respondent/plaintiff four witnesses were examined including pre-emptor and his mother Mst. Sharfan. PW-1 Muhammad Zaman and PW-2 Allah Yar have supported the case of the preemptor and have deposed that expenses of the suit were being borne by Mst. Sharfan. PW-3 Mst Sharfan dep 3d that she was bearing the expenses of the suit and she and her children were living separately in the house of her brothers. Her son Maqbool was also earning. PW-4 Maqbool stated that at the relevant time he was 14 or 15 years old and had studied upto 7th class. He had been earning and giving Tioney to his mother. On the other hand appellant who is defendant in the suit exaonined five witnesses including himself. Emphasis in their evidence is that transaction was for Rs.65,000/- and low amount of Rs.10,000/- was shown as vendor and vendee were brothers and secondly transaction took place in presence of Maqbool. After appraisal of evidence trial Court came to the conclusion that defendant in the suit failed to prove that transaction was benami and suit was for the benefit of vendor. Trial Court has believed the evidence produced on behalf of plaintiff th - plaintiff has exercised his right of pre-emption through his mother for his own benefit. Trial Court has also held that plaintiff as son of vendor has superior right of pre-emption as against defendant who is brother of vendor. On the issue of waiver, trial Court has held that burden was upon the defendant in the suit who failed to produce positive evidence of waiver and mere presence at the time of sale was not sufficient. Even defence witnesses did not state specifically that pre-emptor did anything or said anything to show that he had waived his right. These findings are based upon evidence which have been maintained in appeal and second appeal. 9. Pre-emptor cannot be non-suited on the allegation of collusion unless it is established by uncontrovertable evidence and there is strong proof in support thereof. In this context reference can be made to the case of Imam Vs Saifur Rahman (PLJ 1984 S.C.420) in which while examining Sections 15 and 21 of the Punjab Pre-emption Act, 1913, it was held that allegation of collusion has to be established by uncontrovertible evidence and such allegation simpliciter could not be a good ground for rejection of claim. It was also held that if pre-emptor is minor or poor and litigation is financed by somebody-else would not by itself mean that petitioner is acting in the interest ot another. If son of vendor files suit for pre-emption, it does not mean that he has done so in collusion with his father or for the benefit of another person unless it is so proved by strong evidence. Reference can be made to the case of Altaf Hussain Vs Abdul Majeed (NLR 1992 S.C.J 118). 10. In view of evidence available on the record and legal position stated above, we are unable to find any flaw or legal infirmity in the order of the High Court dismissing second appeal filed unxler Section 100 C.P.C on the ground that no interference was called for in the findings of two Courts below which are concurrent. Appeal is, therefore, dismissed and there will be no order as to costs. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 288 PLJ 1993 SC 288 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ AND SAJJAD ALI SHAH, J MIRMAZAR —Appellant versus AZIM — Respondent Civil Appeal No.52-Q of 1990, accepted on 10-2-1993 (approved for reporting on 3-4-1993) [On appeal from judgment of High Court of Baluchistan dated 18-6-1983, passed in Civil Revision No.28 of 1982] Civil Procedure Code, 1908 (V of 1908) O.VI R.17 - Plaint - Amendment of— Application moved before High Court in civil revision — Dismissal of — Challenge to -- Order VI Rule 17 of CPC provides that court may, at any stage of proceedings, allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for purpose of determining real questions in controversy between parties — Rules of procedure are meant to advance justice and to preserve rights of litigants — They are not meant to entrap them into blind corner so as to frustrate purpose of law and justice ~ Held: Ends of justice demanded that High Court should have allowed amendment as it was formal in nature and by allowing it, nature of suit is not changed — Appeal accepted. [Pp.290 & 291] A,B&C PLJ 1985 SC 525 rel. Mr. M. Aslain Chishri, Advocate, Supreme Court, for Appellant. Mr. M.S. Ghaury, AOR (absent) for Respondent. Date of hearing: 10-2-1993. JUDGMENT Sajjad Ali Shah, J - Appellant before us as plaintiff filed suit for permanent injunction against respondent herein on the ground that land in dispute described at page 138 of paper book is owned and possessed by him with which defendant in the suit could not interfere on the basis of so-called claim of ownership indicated by the fact that he had dug well in the centre of it. The suit was filed in the Court of Assistant Commissioner/Qazi Turbat. Proceedings under Section 145 Criminal Procedure Code were taken in hand by the parties, which went upto High Court. After consideration of evidence and documents produced by the parties, suit was decreed in favour of plaintiff with direction that portion of suit land in use of defendant as cultivator was to be restored to the plaintiff. 2. Against the decision in suit, appeal was filed before Majlis-e-Shoora, Khuzdar, which was allowed vide judgment dated 11-5-1982 on the ground mainly that in the judgment of Qazi Sahib in suit proceedings possession was shown to be with defendant, hence suit for perpetual injunction was not competent and suit for possession should have been filed. Execution proceedings took place and finally Civil Revision No.29/81 was filed in the High Court of Baluchistan by plaintiff in 'the suit with prayer inter-alia for modification of decree of the trial Court with grant of relief of possession of the portion of land which had come in forcible possession of defendant in the suit. Appellant/plaintiff in the suit also filed application in the High Court for amendment of the plaint to include thereiii prayer of relief of possession of portion of the disputed land of which he was dispossessed by defendent in the suit. High Court dimissed Revision on the ground that defect in decree for possession in a suit for injunction was cured by judgment of Majjis-e- Shoora with which no interference is warranted. 3. Leave is granted by this Court vide order dated 8-4-1990 to consider the contention that plaintiff in the suit was admittedly in part possession of the suit land and his application for amendment being technical in nature should not have jbeen rejected in view of decision of this Court in the case of Mxt. Ghulam Bibi and {others Vs. Sarsa Khan and others reported in PLJ 1985 S.C.525. | 4. Order VI rule 17 of Civil Procedure Code provides that the Court may at I any stage of proceedings allow either party to alter or amend his pleadings in such i manner and on such terms as may be just, and all such amendments shall be made I as may be necessary for the purpose of determining the real questions in j controversy between the parties. Interpretation of the provision came up for detailed examination in view pf case law on the subject in the case of Mst Ghulam Bibi mentioned above by this Court. In that case Muhammad Aslam predecessorin-interest of appellants received agricultural land in district Vehari from Mian Khan predecessor-in-interest of respondents in lieu of his land in District Sargodha. Land received by Muhammad Aslam in exchange was in excess, hence he agreed to pay some extra amount as equaliser. Possession was exchanged but as Mian Khan died, his legal representatives refused to agree to the exchange. Muhammad Aslam filed suit for declaration that he is owner in possession and injunction to restrain respondents from interfering with his possession. Objection was taken that suit in that form was not maintainable and issue was framed but suit was decreed in favour of appellants. Appellate court reversed judgment and decree on the ground that exchange deed was not registered, hence title did not pass to the appellants and further suit for specific performance should have been filed. During hearing of second appeal, application was filed to amend the plaint, which was rejected for the reason that request was belated. In such circumstances this Court examined the scope anr 1 ".onstruction of Order VI rule 17 C.P.C and finally allowed appeal and application filed in the High Court for amendment of plaint subject to the payment of cost and remanded the case to the trial Court with proper opportunity to the other side to amend their written statement. Pertinent observation from the judgment of this Court is reproduced as under:- In some cases in addition to what the Judicial Committee thought in the case of Ardeshir H, Mama to be the right of a defendant "to starve a plaintiff out of his right through the technicalities of procedure" with which, with respect, we have not been able to agree, it has also been observed that when allowing amendment in a plaint the defendant's right should also be kept in view. When the relevant law itself takes cognizance of any inconvenience, embarrassment or frustration to a party on account of its observance the Court would not through any residuary principle add to or subtract from the manner of making amends provided by the law itself. In case of amendment to the pleadings the law-makers when enacting rule 17 of Order VI were conscious that the party opposing the amendment might be deprived of some right, convenience or advantage or may otherwise be put in some embarrassment by permitting the amendment; which as has often been held might even override the consideration of limitation, provided the cause of action is not changed so as to make it a totally new suit. It was this consciousness regarding some amount of loss to the other party that the law-makers visualised a compensation, namely, that the amendment keeping in view the circumstances of the case and the stage of litigation would be on "such terms as may be just". 5. It has been ruled in recent years by the superior Omuls <•' Pakistan that rules of procedure are meant to advance justice and to preserve rights of litigant and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice as has been held in above mentioned reported case. In the instant case after suit was decreed by the trial Court, execution application was filed and possession of small portion was handed over to the appellant and against that order, appeal filed before District Magistrate was dismissed. However appeal against judgment and decree was allowed by Majlis-e-Shoora. In second appeal before High Court application was filed seeking amendment of plaint, notice of which was served on the other party but no reply was tiled thereto. High Court did not pass any order on the said application but dismissed second appeal. Ends of justice demanded that amendment should have been allowed as such request could be treated at par with case of declaration under Section 42 of Specific Relief Act when consequential relief had not been sought. Amendment sought in effect is formal in nature and by allowing it, natuu of the suit is not changed. Following the rule laid down in the case of Mst Ghulani Bibi supra, we set aside judgment/decree of High! Court and first appellate Court and remand this case to the first appellate Court onj cost of Rs. 1,000 for decision of appeal afresh as pending with assumption that] plaint stood amended as prayed in the high Court. Resultantly appeal is allowedj with no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 292 PLJ 1993 SC 292 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ, ABDUL QADEER CHAUDHRY AND MUHAMMAD AFZAL LONE, JJ IRSHAD MUHAMMAD alias DADA1 — Appellant versus THE STATE — Respondent Criminal Appeal No 31-P of 1990, partly accepted on 20-12-1992 (approved for reporting on 17-2-1993) [On appeal from judgment, dated 6-5-1990, of Peshawar High Court, in Cr. A. • No.9 of 1985]. Pakistan Penal Code, 1860 (XLV of 1860) 8.304(1) read with Section 300 Exception 4 and Section 302 - Murder - Offence of — Conviction tor — Challenge to — Controversy is narrowed down to a simple proposition whether appellant acted in complete right of private defence or exceeded right of private defence — Failure to place on record medical evidence regarding injuries of appellant, cannot deter court from coming to a correct conclusion as to what might have happened — PW10 saw accused and deceased for first time when they were grappling with each other — It appears that on a sudden quarrel over some trivial matter, both indulged in tight which was not preplanned - - Both received similar injuries if not of same gravity -- Held: It was a case of sudden fight which appropriately tell within Exception 4 to Section 300 PPC and conviction should have been under Section 304 Part I of PPC -- Conviction altered. [Pp. 294 & 295] A,B&C Mian Shakr'ullah Jan, AOR for Appellant. Mr.M. Sardar Khan, Advocate General. , NWFP, Peshawar ,and Mr. Jan Muhammad Khan, AOR (absent) for State. Date of hearing: 20-12-1992. JUDGMENT Muhammad Afzal Zullah, C.J - This direct appeal in a case of murder is brought against the judgment of the Peshawar High Court; whereby while setting aside the appellant's conviction under Section 326 PPC, he was convicted instead under Section 302 PPC and was awarded sentence of life imprisonment together with award of fine and compensation. The acquittal of the father of the appellant; namely, Said Muhammad, who was also tried with him, by the trial Court was however, maintained. The accused/convict has challenged his conviction under Section 302 PPC through this direct appeal. The prosecution case as noticed in the impugned judgment is that on 18-12- 1980 when Sarwar Khan PW-10 was taking tea in the hotel of one Ikhtiar, the deceased Abdul Wahhab also came there with a loaf of bread in his hand. He after obtaining milk from the hotel went outside. Sarwar Khan also followed him a little later and saw that Irshad Muhammad appellant was grappling with the deceased who had already received some injuries. The witness put Abdul Wahhab, who was then in injured condition, in a pick up and took him to the hospital. There an A.S.I recorded the statement of the injured which has subsequently been relied upon as dying declaration as well as F.I.R in the case. It is Ex.PA/1. In the meanwhile the appellant had also arrived at the hospital and he was found by the A.S.I in an injured condition. He also recorded his statement and a case was got registered for offence under Section 324 PPC. The F.I.R. in this counter-case is Ex.DA. The motive in this case is based on some minor altercation between the deceased and the appellant which had taken place some time prior to the occurrence. There was, however, no serious enmity between the parties. The evidence in this case in which the occurrence is admitted by the accused side is usual type. There is an eye witness; a dying declaration; normal investigatory recoveries; there is motive but not strong one for committing a planned murder; the injuries on the accused showing his participation in the occurrence; his admission in the counter F.I.R. of his participation. The learned trial Court after balancing both the versions acquitted Said Muhammad, the father of the appellant, as he had not been attributed any active role in the actual murder, and, convicted the appellant under Section 326 PPC and sentenced him to 5 years R.I and fine. The appellant did not challenge his conviction and sentence under Section 326 PPC. But on the other hand the State through Advocate-General challenged the acquittal by the trial Court of the appellant and (his) father, under Section 302 PPC. The High Court, as stated above, while maintaining the acquittal of Said Muhammad found the appellant guilty under Section 302 PPC, with sentence as noted above. Learned counsel for the appellant has vehemently argued that it was a a case of a complete right of private defence because, as he argued, the deceased had attacked the appellant with a chhuri and although he snatched the same from him, the apprehension from the deceased to the life of the appellant continued. Therefore, under the compulsion of assault and attack from the deceased's side the appellant had the right to cause the death .of the deceased, notwithstanding the somewhat greater number of injures than was absolutely necessary in case the appellant's version of snatching the chhuri from the deceased is accepted as correct. In the alternative the learned counsel contended that at best it would be a case of exceeding the right of private defence and the appellant, accordingly, should have been convicted under Section 304 Part-1 PPC. We have gone through the ocular evidence, dying declaration and the other ' material brought on record against the appellant. The controversy now is narrowed jdown to a simple proposition, namely, whether the appellant acted in complete ! right of private defence or he exceeded the right of private defence - his i participation in the occurrence and having caused injuries to the deceased not (having been disputed. The High Court in the impugned judgment dealt with this (question as follows: - "As regards the injuries on the person of Irshad Muhammad accused/respondent No. 1 suffice it to say that the defence utterly failed to bring on record the nature of the injuries sustained by accused/respondent No.l presumably because the injuries on his person were superficial in nature and could not be considered as sufficient in the ordinary course of nature to extend to him the benefit of right of self defence. The learned trial Judge too did not extend to him the benefit of private defence". After some discussion on the question; as to what was the nature of injuries ! found on the appellant the learned Advocate-General conceded that they must be such which compelled the A.S.I, to register a case under Section 324 PPC at his (appellant's) interest. The concession is fully justified as from the Karwai Police on the F.I.R. lodged by Irshad Muhammad appellant, the injuries found by the A.S.I, on his person are also noticed. It was no doubt the duty of the persecution to place on record the medical evidence regarding injuries on the accused's person. But_ the same was also the duty of the accused. This failure, however, in the. particular circumstances of this case as discussed above cannot deter the court from : coming to a correct conclusion as to what might have happened. See Syed All i Bepari vs. Nibaran Mollah (PLD 1962 S.C. 502). According to eye witness account in the statement of PW-10 when he saw ! the accused and the deceased for the first time they were grappling with each other. Whether it was one knife with one of them only or they had both a knife each, it appears that on a sudden quarrel relating to some previous trivial matter both of them indulged in fight with each other and it was not pre-planned. Both caused i injuries to each other and the nature of the injuries of the deceased does not show that they were the result of any unusual or cruel act on the part of the appellant. He himself was receiving similar injuries if not of same gravity. It was, therefore, a case of a sudden fight which appropriately fell within Exception 4 to Section 300 PPC and the conviction should have been under Section 304 Part-I PPC. Accordingly, while acquitting the appellant of the charge under Section 302 PPC his conviction is altered into one under Section 304 Part-I PPC. He is sentenced to 10 years R.I. The fine and compensation as already awarded is maintained. (MBC) (Approved the reporting) Conviction altered.

PLJ 1993 SC 295 PLJ 1993 SC 295 [Appellate Jurisdiction] Present: SHAFIUR RAHMAN AND SAJJAD ALI SHAH, JJ MANAGING DIRECTOR, SflAHI BOTTLERS (PVT.) LTD—Appellant . versus PUNJAB LABOUR APPELLATE TRIBUNAL, and 2 others — Respondents Civil Appeal No. 1527 of 1990, accepted on 1-12-1992 (approved for reporting on 10-12-1992). [On appeal from order of Lahore High Court, dated 10-10-1990, passed in Writ Petition No. 7279 of 1990] Industrial Relations Ordinance, 1969 (XXIII of 1969) S.2 (xxviii) read with Section 25-A-Public Relations Officer in Shahi Bottlers - Termination of services of — Rejection of grievance petition by Labour Court but reinstatement ordered by Tribunal and writ petition dismissed by High Court — Challenge to — Whether respondent No.3 was a workman — Question of — It was incumbent upon respondent No.3 to have produced documentary or oral evidence to prove that he was workman and performed duties of clerical and manual nature - - Question whether duties of respondent No. 3 were in nature supervisory or not, was not issue before Labour Court and was not part of pleadings ~ Held: Respondent No.3 was not a workman and High Court could have interfered in writ juris'Jiction as order passed by Tribunal was not just and proper - Appeal accepted and order of Labour Court restored. [Pp. 298,299 & 300] A,B & C. PLJ 1978 SC 436 distinguished. PLJ 1987 SC 581 and PLD 1992 SC 118 ref. S. Naeem Bukhari, Advocate, Supreme Court, and Mr. Tanvir Ahmad, AOR for Appellant. Nemo for Respondents 1 & 2. S.A.A. Jafri, AOR for Respondent No.3. , Date of hearing: 1-12-1992. JUDGMENT Sajjad Ah° Shah, J. — This appeal with leave of the Court is directed against order dated 10-10-1990 of Lahore High Court, Lahore , whereby Writ Petition No.7279 of 1990 filed by appellant herein has been dismissed in limine. 2. Briefly stated the relevant facts giving rise to this appeal are that respondent No.3 Hassan Akhtar Siddiqui was employed as Public Relations Officer in Shahi Bottlers (Pvt) Limited , Lahore and his services were terminated on 31st March 1988 for the reason th&t management had decided to abolish that post. He filed grievance petition under Section 25-A of Industrial Relations Ordinance 1969 before the Labour Court on the grounds that he was workman as his duties were purely clerical and manual. Secondly, that he was reverted on 9-12-1987 as Public Relations Assistant and on his protest was shown absent from duty and not paid wages. Thirdly, he refused to sign blank papers and resultantly his sen. ices were terminated. In the' written statement it was vehemently denied that respondent No.3 was workman or did manual or clerical work. Averred that he was not reverted but left factory on 10-1-1988 without permission and thereafter remained absent and was so intimated. Other allegations were also denied. In evidence before the Labour Court , respondent No,3 examined himself and on behalf of the management two witnesses were examined namely R.W-1 Amir Hameed Khan. Manager and R.W-2 B.A. Shakeel, Accountant. 3. After evaluation of evidence produced by the parties, the Labour Court concluded that respondent No.3 before us was not abie to prove that he was doing manual and clerical work which allegation was csiegoriutliy denied by witnesses of the management. He was Public Relations Officer and had been assisting in litigation in the Courts. Management had separate Steno and Accountant. For such reasons it was held that respondent No.3 was not a workman and petition was dismissed. However, this finding was reversed in appeal by Labour Appellate Tribunal on the grounds, firstly that respondent No.3 had summoned record which was not produced by the employer, hence oral evidence was sufficient to prove that he was workman. Secondly, he was covered by the definition of workman as given in Section 2 (xxviii) of Industrial Relations Ordinance, 1969, as it is not claimed by the employer that he was assigned supervisory duties. In the result order of termination was set aside by the Labour Appellate Tribunal and respondent No.3 was ordered to be reinstated. Against that decision writ petition in the High Court by appellant/employer was dismissed on the ground that under Section 25-A of I.R.O, Labour Court has full and complete power to enter into questions of facts and same powers can be exercised by Labour appellate Tribunal as appeal is in continuation of original proceedings. Interference in writ petition was declined on the ground that on the finding of fact evidence was properly evaluated by Labour Appellate Tribunal and respondent No.3 was rightly found to be workman. 4. Leave has been granted by this Court to examine the contention of appellant that finding of the Labour Appellate Tribunal that respondent No.3 was workman was not sustainable as his duties as Public Relations Officer did not primarily entail clerical and manual work. This question would take us to the pleadings and evidence produced by the parties before the Labour Court. There is no doubt about the fact that burden was upon respondent No. 3 to prove that he was a workman and performed purely clerical and manual duties as was claimed by him. It was denied in the written statement that respondent No. 3 was workman and performed duties of the nature alleged by him. In his evidence respondent No.3 stated that his duties were purely clerical and manual. He operated photostat machine and also typed. He attended Court work as representative of the factory. He maintained accounts of petrol, bottles and motor transport. He also maintained accounts of subsidiaries of Shahi Bottlers. Managing Director called him and asked him to sign blank papers which he refused, hence he was shunted out from service. In crossexamination he stated that he was not incharge of transport but that duty was being taken free him and he used to have vehicles repaired. He did not get any order in writing for doing such works. He served for 3 years and 2 months. There was no typing department in the factory and M.D did not have Private Secretary or Steno but he did not do that work. He was given scooter by the company to follow Court cases which was taken back from him. 5. On the other hand R.W-1 Amir hameed Khan, Manager, deposed that respondent No.3 remained absent from 11-1-1988 to 25-1-1988 and then resumed duty. Ex.P-1 was letter which was issued inadvertantly and was recalled. Respondent No.3 was given scooter for Court work which was later taken back from him. This witness was cross-examined. Second witness examined was R.W- 2 B.A. Shakeel, Accountant, who in his deposition made categorical assertion that respondent No.3 never performed duties in his account section and never maintained record for bottling and petrol. He never worked in the shipping section but was working as P.R.O. and was assisting him in the litigation were before the Courts. In the cross-examination only two questions were asked to which reply was given that this witness never worked under respondent No.3 nor did he know whether respondent No. 3 had ever charge-sheeted anyone. It may be mentioned that evidence of respondent No.3 was recorded on 21.1.1987 and evidence of two witnesses of management was recorded on 7-6-1990. There is application on the record filed by respondent No.3 on 25-6-1988 requesting for production of the following record:- 1. Complete daily report of employees of Ellahi Farm, Badian Road, (prepared by respondent No.3) for the year 1987. 2. Attendance Register of employees of Ellahi Farm, Badian Road (prepared by respondent No.3) for the year 1986. 3. Salary sheets of employees of Ellahi Farm for the year !986. 4. Register of daily income and expenses of Ellahi Farm for the year 1986. 5. Register for bank account of Ellahi Farm for the year 1986. 6. It is mentioned in this application that these documents were prepared by respondent No.3 himself. Reply is filed by the management to the effect that no record as mentioned at S.No.l to 5 was maintained at the land owned by Mr. Inam Ellahi, his wife and son and only one Munshi was working at the Farm who brought monthly accounts for checking and after checking the record was not maintained as permanent record. It was further stated that alleged record had no relevancy with the case as respondent No.3 had not stated in his grievance notice or petition that he had been working at the Ellahi Farm. No further action was taken on this application and it is not mentioned in the judgment of the Labour Court probably for the reason that it was not pressed. Had it been pressed respondent No.3 would have put questions on the subject of Ellahi Farm to R.Ws 1 and 2, who were examined on 7-6-1990 much after the date of reply which was 15-12- 1988. 7. It appears that. Labour Appellate Tribunal was in error in considering that documents summoned by respondent No.3 pertain to the record of Shahi Bottlers and were relevant for adjudication upon the issue whether respondent No.3 was workman or not and whether he performed duties of clerical or manual nature. Had these documents been relevant, respondent No.3 would not have crossexamined R.W-1 and R.W-2 in the absence of these documents and would have insisted for their production before examination of these witnesses. It is clear that after the reply respondent No.3 was satisfied that documents sought by him to be produced were not relevant to issues of this case, hence he abandoned his request and did not press it further. Coming back to the burden of proof, it was incumbent upon respondent No.3 to have produced documentary or oral evidence in support of his contention that he was workman and performed duties of clerical and manual nature. He could have produced witnesses in support of his contention. Evidence produced before the Labour Court was insufficient and unsatisfactory and on the basis of which finding given by Labour Court is proper and sustainable under the law. 8. Mr. Naeem Bokhari, learned ASC for the appellant has submitted that judgment in the case of Crescent Jute Products Ltd. Vs Muhammad Yaqoob & others (PLJ 1978 SC 436), relied upon by the High Court in support of the finding that Labour Appellate Tribunal was competent to pass any order which Labour Court could have passed, is distinguishable and is not attracted to the facts of this case for the reason that in the reported case employer did not lead any evidence to justify dismissal and officers were not produced whose orders were disobeyed by the employee who was dismissed. In such circumstances it was held that appellate tribunal was justified in accepting appeal of employee by holding that his dismissal was unwarranted on factual plane. As against that in the instant case employer had produced evidence and examined two witnesses who gave evidence relevant for controversial issues in the case. Contention is tenable and we are of the view that the reported case is not attracted to the facts of this case. 9. Next contention raised on behalf of the appellant is that as contemplated under Section 25-A(5) of I.R.O, Labour Court can go into all facts of the case and pass such orders as may be just and proper in the circumstances of the case, Labour Appellate Tribunal can exercise the same powers and High Court in constitutional jurisdiction cannot decline to interfere on the ground that finding of fact by the •Tribunals cannot be disturbed even if it is wrong in law. Words "just and proper" as used in Section 25-A(5) of I.R.O came up for examination in the case of Utility Stores Corporation of Pakistan Limited Vs Punjab Labour Appellate Tribunal. (PLJ 1987 S.C. 581). It was held that word "just" means "according to law" and word "proper" means "accurate". "Just and proper" conveys eminent sense of being in accordance with law and to be proper. In the case of Rana Mukhtar Ahmad Vs Punjab Labour Appellate Tnbunal and others (PLD 1992 Supreme Court 118) appellant was working as Senior Foreman in the factory and was drawing wages amounting to Rs. 1833/- per month. His services were terminated on the ground that they were no longer required. He took up plea in the grievance petition that he was workman and it was so held by Labour Court and Labour Apppellate Tribunal. Writ petition filed was allowed on the ground that appellant was not workman and two judgments in his favour were set aside. It was held that essential work that appellant was doing was to supervise the work of contractor and see that he was carrying out the work in accordance with the drawings etc. given to him but the work performed by him did not involve any skill nor did he do any work of a clerical or manual nature. Close scrutiny of appellant's duties revealed that his work did not involve work of routine or manual nature but required application of mind and supervision of work done by others. Finding of the High Court to that effect was affirmed and appeal was dismissed. 10. The question whether duties of respondent No.3 were in nature supervisory or not was not issue before Labour Court and was not part of pleadings. He did not make such assertion in the grievance petition. In the written statement stand was taken that respondent No.3 was not workman as he was drawing more than Rs. 1500/- salary per month and was not paid any bonus according to law. In the Labour Court respondent No.3 did not ask for record relating to his duties, whether they were supervisory or not. On the contrary he asked for record which was not relevant and did not exist. On this point he did not put question to the witnesses of management. R.W-2 Shakeel accountant stated that respondent No. 3 was P.R.O and assisted him in the litigation before Courts and he was not corssexamined on that assertion. Only two questions were put to this witness in crossexamination and to one he replied that respondent No.3 did not charge-sheet anybody. This reply is to be seen in the light of admission of respondent No.3 that his total service was about 3 years and duties, as claimed by the management, were 1 to attend to litigation work in the Courts and for that purpose he was given scooter. j In any case on this point no evidence was produced because such plea was not 'taken before the Labour Court and leave was granted on this point. For facts and reasons stated above, we are of the view that respondent No.3 'in this case was not a workman as it appears from the evidence produced by the parties. High Court could have interefered in writ jurisdiction as order passed by ,. Labour Appellate Tribunal was not just and proper and consistent with evident on I the record. We, therefore, set aside order of the High Court and Labour Appellate i Tribunal and restore order passed by the Labour Court. In the result appeal is fallowed and there will be no order as to costs. (MBC) (Approved for reporting) Appeal accepted

PLJ 1993SC300 PLJ 1993SC300 [Appellate Jurisdiction] , Present:MMAL MIAN AND MUHAMMAD AFZAL LONE, JJ S1RAJ DIN — Appellant versus SARDAR KHAN and 2 others — Respondents Civil Appeal No. 1531 of 1990 (also C.A. No. 1532 of 1990), accepted on 24-11- • 1992 (approved for reporting on 1-2-1993) (On appeal from judgment, dated 10-10-1990 of Lahore High Court, passed in Writ petitions No.5141 and 1538 of 1981] (i) . Civil Procedure Code, 1908 (V of 1908) O.XX R. 14 — Pre-emption — Suit for — Ground of superior right as tenant — Decree passed in — Failure to deposit purchase money — Effect of — Final order/decree passed by Collector does not conform to requirements of Order XX, Rule 14 of CPC as it does not embody any direction that in case of appellant's failure to deposit purchase money into court within stipulated time, his suit would stand dismissed — Held: Appellant's suit could not have been dismissed due to non-payment of purchase money into court — Appeals accepted and cases remanded to Collector for passing fresh decree in conformity with law. . PLD 1991 SC782rel. (ii) Land Reform Regulation, 1972 (MLR 115) Para . 25 (8) — Pre-emption — Suit based on tenancy — Whether Collector is to follow Civil Procedure Code — Question of ~ Expression "deem" is commonly used to create legal fiction and introduce an artificial conception — Court is entitled to ascertain object for which legal fiction is created — Object of words "shall be deemed to be a civil court" seemingly is to put beyond reasonable doubt availability of such power to forums entrusted with hearing of suits under para 25 of Regulation -- Held: For pronouncement upon rights of parties, Collector and other functionaries have to imperatively investigate and determine facts objectively and apply law thereto like a civil court and are bound by procedure laid down in C ' P " C " [Pp.302 & 303JA Ch. Nabi Ahmad Cheema, Advocate, Supreme Court, instructed by Ch. Mehdi Khan Mehtab, AOR for Appellant (in both cases). Mr. Masood Mirza, Advocate, Supreme Court, instructed by Mr. M.A. Qureshi, AOR for Respondent (in both cases). Date of hearing: 24-11-1992 JUDGMENT Muhammad Afzal Lone, J. -- The relevant tacts, as stated in the leave grant order are that two pre-emption suits brought by the appellants on the ground that the land sued for comprised in their tenancy were decreed by the Civil Court, in pursuance whereof they also deposited the purchase money in the Court. However, on appeal by the vendee-respondent, the District Judge set aside these decrees and transferred the suits to the Assistant Commissioner/Collector vested with the exclusive jurisdiction to hear such cases. The parties litigated under that jurisdiction and it was on 25-1 1-80 that the appellants succeeded in second round, in appeal, before the Additional Commissioner, and were directed to deposit the purchase money in the Court within 15 days. Instead of complying with this direction, the appellants moved an application for adjustment against the decrees of the Revenue' Court, of the purchase amount already deposited by them in the Civil Court. The Additional Commissioner declined this request, but enlarged the time for payment of the purchase money into the Court. The validity of extension of time was assailed by the vendee in revision before the Member Board of Revenue, who took the view that after passing the decree no power vested in the Additional Commissioner to enlarge the time and that the appellants having failed to deposit purchase money within the time limit originally fixed, stood denuded of their right to pre-empt the land. Thereafter, the appellants invoked the constitutional jurisdiction of the High Court, but both the writ petitions were dismissed on the ground that according to the law laid down by this Court, no decree could be passed in a tenant's suit for pre-emption. The High Court's judgment dated 10-10- 1990 is under challenge before us in this appeal by leave to appeal. 2. Leave to appeal was granted to examine the appellants' contention that under para 25(8) of the Land Reforms Regulation, 1972, the Collector and other higher forums in the hierarchy of the Revenue Department dealing with the tenant's suit are deemed to be Civil Courts and, therefore, the appellants could justifiably claim adjustment of the amount lying deposited in the Civil Court. 3. It will be seen that under sub-para 5 of para 25 of the Land Reforms Regulation incorporated therein by Ordinance XX of 1976. exclusive jurisdiction is conferred on the Collector to decide suit in which right of pre-emption is claimed on the basis of tenancy. Sub-para (8) of para 25 provides:- "(8) For the purposes ot this paragraph a Collector, a Commissioner and the Board of Revenue shall be deemed to be a Ciul Court arc 1 shall have all powers of a Civil Court under anv lav. for the time being in force and the final order passed in vuch suits be deemed to be a decree of a Civil Court and shall be executed as such." The expression "deem" is commonly used to create legal fiction and I introduce an artificial conception. Speaking generally when legislature commands that a language is to be deemed to be something, obvious conclusion is that in reality it is no that thing, what the legislature requires it to be treated. It is settled rule that the Court is entitled to ascertain the object for which the legal fiction is created and confined to the purposes for which it is meant. It appears to us that the object of the deeming clause is circumscribed by sub-para (8) itself, which is to the effect that while entertaining and deciding suits enforcing the right of pre-emption, founded on tenancy, the Collector, the Commissioner and Board of Revenue "shall " have all the powers of a Civil Court under any law for the time being in force" but it can well be said that this power could have been conferred on these forums even without importing the concept of legal fiction. One object of user of the words "shall be deemed to be a Civil Court" preceding the above quoted expression seemingly is to put beyond reasonable doubt the availability of such power to the forums entrusted with the hearing of the suits under para 25 of the Regulation. Further in the absence of these words, conceivably such forums would have remained merely a quasi judicial tribunals guided by the provisions of CPC in i resolving the disputes brought before them. But, on account of the deeming clause i they are clothed with the status of a Civil Court. The effect of combined reading of the aforesaid two "expressions" is that for pronouncement upon the rights of the [ parties, the Collector and other functionaries have to imperatively investigate and i determine the fact objectively and apply law thereto like a Civil Court, and are bound by the principles and procedure laid down in Civil Procedure Code. The latter part of sub-para (8) demonstrates that final orders passed in such suits are required to be treated as decree of the Civil Court and executed as such; meaning thereby that in executing final order, it is not open to the Collector to follow the procedure other than the one provided by the Civil Procedure Code, and further he can exercise the powers of Executing Court under the Code, including the powers • to determine the question relating to execution, discharge and satisfaction of.thej decree. 4, In a pre-emption suit, under Order XX, rule 14 CPC the decree must specify the date on or before which the decree-holder has to pay the purchase money together with costs, if any, into the Court. The decree should also embody a direction that if the purchase money and the costs are not so deposited, the suit shall stand dismissed. The question requiring determination is whether the fictional character of the Collector, as a Civil Court, and of the final order in the suit before him as a decree of the Civil Court, can be enlarged to the extent that the amount already deposited by the appellant in the Civil Court be considered as a deposit for the purpose of the decree in his favour by the Collector. It is difficult to give an answer in the affirmative. Normally she deposit made in one Court on the assignment of the suit to another Civil Court of co-ordinate jurisdiction may be treated as a valid deposit and appropriated for satisfaction of the decree passed by the latter Court; but this rule cannot be extended to the appellants' case, the reason being that opening words of subclause (8) "for the purpose of this paragraph" sufficiently indicate limitation on the statutory fiction that it is to be confined to para 25 only. The Civil Court envisaged by sub-para (8) cannot be considered as a Civil Court created by Civil Courts Ordinance 1962, as referred to in the Civil Procedure Code. Furthermore, the decree-holder would be exposed to lot of inconvenience in withdrawing the amount from the Civil Court, in pursuance of the decree of the Collector. The appellant therefore cannot succeed on the point canvassed by him in the leave grant order. However, form the perusal of the i record we find that the final order/decree by the Collector does not conform to the requirements of Order XX, rule 14, in as much as it does not embody any direction that in case of appellant's failure to deposit the purchase money into the Court; within the stipulated time, his-suit would stand dismissed. As held by this Court in Fateh Khan Vs. Boze Mir (PLD 1991 S.C. 782) the provisions of Order XX, rule, 14 (1) are of penal nature; strict compliance therewith is, therefore, necessary to; impose on the appellant the penalty of dismissal of his suit. His suit, therefore! icould not have been dismissed due to non-payment of the purchase money into the ICourt. To do complete justice between the parties, these appeals are accepted, the impugned judgment is set aside and the case remanded to the Collector to pass a fresh decree in conformity with law. The parties are left to bear their own costs. (MBC) (Approved for reporting) Appeals accepied.

PLJ 1993 SC 304 PLJ 1993 SC 304 [Appellate Jurisdiction] Present: ABDUL QADEER CHAUDHRY AND SA1DUZZAMAN S1DD1QUI, JJ ABDUL GHAFOOR (DECEASED) represented by his L.Rs.and 3 others- Petitioners. versus MUHAMMAD FAZIL — Respondent Civil Petition No.631-L of 1992, accepted on 30-3-1993. [On appeal from judgment, dated 2-6-1992, of Lahore High Court, passed in R.S. A No. 170 of 1979] Conflict of opinion Pre-emption — Suit for — Amendment in para 25 of MLR 115 -- Effect of — There appears to be some conflict of opinion between learned Judges of Lahore High Court with regard to competence of suit before civil court after amendment of para 25 of MLR 115 in which right of pre-emption was claimed on basis of tenancy as well as on other grounds — It is admitted that there is no decision of. Supreme Court directly on that point ~ Held: Above noted point needs authoritative pronouncement by Supreme Court in view of conflict of opinion amongst learned Judges of High Court -- Leave granted. [P.305]A&B PLJ 1987 Lahore 235 and 1982 CLC 700 ref. Ch. Qadir Bakhsh, Senior Advocate Supreme, Court, and Rana Maqbool A Qadri, AOR for Petitioners. Mr. Talib H.Rizvi, Advocate Supreme Court, and Mr.S.Ali Imam Naqvi, AOR for Respondent. Date of hearing: 30.3.1993. ORIIER Saiduzzaman Siddiqui, J — The above petition arises out of a suit for pre­ emption brought by the respondent to pre-empt the sale of a piece of land. Suit was decreed by the trial Court but on appeal the first appellate Court reversed the judgment and, decree of the trial Court and dismissed the suit for preemption. In RSA No. 170 of 1979 filed by the respondent against the judgment and decree of first appellate Court, the learned Judge in Chambers reversed the findings of first appellate Court and restored the judgment and decree of trial court. The petitioners/vendees have now filed the above petition in this Court seeking leave to appeal against the judgment and decree of learned Judge in Chambers dated 2-5- 1992. The learned counsel for the petitioners contends that the suit filed by the respondent was biased on the right of tenancy as well as co-ownership in the pre­ empted land but during the pendency of the said suit paragraph 5 of MLR 115 was amended by the Land Reforms (Amendment) Ordinance 1976 which provided that all suitr for enforcing the right of preemption in respect of land comprised in the tenancy which were pending on the date of enforcement of the Amendment of Ordinance shall be exclusively tried by the Collector within whose jurisdiction the land in respect of which right of preemption has been claimed was situated, and all such suits shall stand transferred to the Collector concerned. The learned counsel for the petitioners, accordingly, contended that the suit instituted by the respondent before the Civil Court to enforce the right of preemption on the basis of right of tenancy in the land could not be proceeded before the Civil Court after the date of enforcement of the Amended Ordinance of 1976 and the suit should have been transferred to the Collector concerned in accordance with amended paragraph 25 of MLR 115. The learned counsel for the respondent/Caveator, on the other hand, contends that the suit filed by the respondent was based not solely on the right of tenancy in the disputed land but the respondent also claimed to be co-owner of the land. The learned counsel, for the Caveator further contended that after the amendment in paragraph 25 MLR 115, the respondent had abandoned his claim with regard to right based on tenancy and had confined his prayer in the suit only on the right of co-ownership in the land. There appears to be some conflict of opinion between the learned Judges of Lahore High Court with regard to the competence of a suit before the Civil Court after amendment of paragraph 25 of MLR 115 in which, the right of preemption was claimed on the basis of tenancy as well as other grounds. The learned counsel for the petitioners has cited the cases of Muhammad Ramzan and others Vs. Nur Muhammad (PLJ 1987 Lah. 235) and Abdul Qayyum Vs. Zubaida Khan (1982 CLC 700) in which the view expressed by the learned Judges supported the contention of the petitioners, while the view taken by the learned Judge in Chambers in the present case is not in consonance with the views expressed in the above cited cases. The learned counsel for the parties admit that there is no decision by this Court directly on the point. The point noted above, therefore, needs authoritative pronouncement by this Court in view of the conflict of opinion amongst the Judges of High Court. Leave is granted, accordingly. (MBC) (Approved for reporting) Leave granted.

PLJ 1993 SC 306 PLJ 1993 SC 306 [Appellate Jurisdiction] Present: SHAFIUR RAHMAN AND SAAD SAOOD JAN, JJ AMANULLAH KHAN — Petitioner versus WAPDA THROUGH ITS CHAIRMAN and 3 others - Respondents Civil P.L.A No. 447-L of 1992, dismissed on 4-4-1993 [On appeal from judgment of Punjab Service Tribunal, Lahore , dated 9-1-1992, passed in Appeal No.365 of 1988] Service Matters Employee of Punjab Government on deputation to WAPDA -- Getting employment in Saudi Arabia — Dismissal from service of -- Challenge to Contention that order impugned before Tribunal was from retrospective date and was beyond competence of Authority — Petitioner had given a un tiers undertaking not to take up any employment anywhere else and he couid not resile from it unilaterally — By taking employment abroad, he definite!) abandoned h,=- employment in WAPDA - Held: It was not a question of passing a retrospects e order or question of power of Authority but of conduct of petitioner in not returning after expiry of leave and by taking up an unauthorised employment abroad -- Leave refused. [P. 307]A&B Mr. D.M. Awan, Senior Advocate, instructed by S. Inayat Hussain, AOR for Petitioner. Respondents: Not represented. Date of hearing:4.4.1993. ORDER Shafiur Rahman J:~ The petitioner seeks leave to appeal against the judgment of the Punjab Service Tribunal dated 9-1-1992 whereby the appeal filed by him was dismissed on merits as well as on the ground of limitation. 2. The petitioner challenged the dismissal from service order passed on 28-12- 1987 but taking effect from 13-8-1978. 3. The petitioner was posted as Director of Design WAPDA (Power) at Lahore. He himself being a Deputionist from Punjab Government obtained three months' leave from 18-5-1978 for visiting his family abroad. He gave an undertaking that he would not seek employment anywhere else. He did not return after the expiry of the leave and instead obtained an employment in Saudi Arabia where he remains still employed. He sought in view of the various policy letters extension of his leave which was refused. He was charge-sheeted and dismissed from service. 4. The learned counsel for the petitioner submitted that the order impugned before the Tribunal was from a retrospective date going as far back in retrospect as August, 1978 and was beyond the competence of Authority. Similarly, the inquiry was not held in accordance with law and the petitioner should have been extended the benefit of employment abroad as would appear to be the policy of Government in 1978 or near about. 5. From the facts narrated, it appears that the petitioner was on deputation when toe proceeded abroad. These instructions do not apply to a person who is already on deputation. He could not of his own proceed to a second deputation. Besides he had given a written undertaking not to take up an employment anywhere else. Hence he could not resile from it unilaterally. Had he not given it he would not have been granted leave ex-Pakistan. What is more by taking up employment abroad, he definitely abandoned his employment in WAPDA and in the dismissal order by mentioning that date as of dismissal and relating it to the date of his abandonment of his employment nothing more than a tact was stated. It was not a question of passing a retrospective order or the question of power of the Authority but of the conduct of the petitioner in not returning after expiry of the leave and by j taking up an unauthorised employment abroad. 6. Leave to appeal is refused. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 SC 307 PLJ 1993 SC 307 [Appellate Jurisdiction] Present: ABDUL QADEER CHAUDHRY AND SAIDUZZAMAN SIDDIQUI, JJ Kana SHAMSHAD ALI KHAN -- Petitioner versus PROVINCE OF PUNJAB , THROUGH COLLECTOR, MULT AN and 4 others — Respondents Civil Petition No.632 of 1992, dismissed on 29-3-1993. [On appeal from judgment of Lahore High Court, Multan Bench, dated 13-7-1992, passed in C.M. 430 - C of 1992 in C.R.804 of 1986.] Civil Procedure Code, 1908 (V of 1908) S.151 read with Order XXVI Rule 9 - Status quo order - Clarification of - Whether learned Judge in Chamber had no power to appoint a Commissioner to inspect premises and report whether any portion thereof was damaged on account of rains - Question of ~ Apart from provisions of Order XXVI rule 9 CPC, court has inherent powers to pass any order to do complete Justice — Rules of procedure are meant to advance course of justice and not to obstruct same — Held: Learned Judge in Chamber was fully competent to modify status, quo order granted by him and pass any incidental order including order to appoint a Commissioner to inspect site under Section 151 in absence of any specific provision in CPC — Petition dismissed. [Pp 308 & 309]A Mr. Hassan Ahmad Khan Kanwar, Advocate, Supreme, and S. Salahuddin, AOR for Petitioner. Respondents: Not represented. Date of hearing :29-3-1993. JUDGMENT Saiduzzaman Siddiqui, J. - The petitioner is seekiag leave to appeal against the Order of a learned Judge in Chambers of Lahore High Court dated 13- 7-1992, whereby the learned Judge, in the pending Civil Revision Application No.804/86 appointed an advocate as the Commissioner to inspect the premises in Suit and to report whether any portion thereof had been damaged during the current seasonal rains and that the premises needed immediate repairs. The learned Judge in Chambers appeared to have passed earlier, in the above Civil Revision Application, an interim order of status quo against respondents 3 to 5 on the application of petitioner v-hich is operative. Respondents 3 to 5 accordingly moved Misc. Applications Nos.225-C-92 and 267-C-92 before the learned Judge in Chambers for early disposal of Revision Application and during the course of hearing of these applications? contended that on account of status quo order in the case, they are facing hardships as the premises in their possession has become dilapidated due to rains and they prayed for modification of the status quo order to the extent that they may be allowed to carry out the repair of the premises in order to keep the premises in its original condition. This prayer of the respondents was opposed by the petitioner whereupon the learned Judge appointed a Commissioner to inspect the premises in Suit and report whether any portion thereof was damaged on account of rains and it required immediate repairs. The learned counsel for the petitioner contended before us that the learned Judge in Chambers had no power to appoint a Commissioner as the provisions of Rule 9 of Order XXVI CPC were not applicable to the proceedings before the learned Judge in Chambers. The contention of the learned counsel has no force. Apart from the provisions of Order XXVI Rule 9 CPC, the Court has inherent powers to pass any order in a case, which the circumstances of the case so require to dp complete justice between the parties, and for which no specific provision exists in the Code. The rules of procedure are meant to advance the course of justice and they cannot be pleaded to obstruct the same. The learned Judge in Chambers having granted status quo order in the case, on the application of petitioner, was fully competent to modify that order if the circumstances of the case which surety was valid for two months — Respondent No.l has not offered any explanation as to why it did not avail of surety — No doubt true that under agreement, amount of Rs.50,000/- was payable by appellant to Corporation and it did not pay till institution of suit -- Held: Omission of appellant to pay dues of Corporation can hardly furnish a justification to deny specific performance of agreement particularly when respondent No. 1 had received a fairly substantial amount by way of earnest money. [P. 313]A (iii) Specific Performance Agreement to sell factory building — Specific performance of — Suit for — Dismissal of suit — Challenge to - Mere fact that appellant had already been allotted a 'B' category plot, did not necessarily imply that it was no longer interested in acquiring factory building — At no stage, appellant had given up it> rights under agreement and was no longer interested in agreement — Held: There i? no reason why appellant should have been denied specific pertormar.e of agreement. [P. 314] B&C Mr. Jariullah Khan, Senior Advocate. Supreme Court, instructed by Ch. Mehdi Khan Mehtab, AOR for Appellant. Raja M. Akram, Advocate, Supreme Court, instructed by Raja Abdul Razzaque, AOR for Respondents. Date of hearing: 26-10-1992. JUDGMENT Saad Saood Jan, J — This is an appeal by special leave from the judgment dated 6-8-1988 of the Lahore High Court, affirming the judgment and decree of the Senior Civil Judge, Sialkot, in a suit for possession through specific performance of contract. 2. M/s, Rahim Industries Pakistan Limited, respondent No.l, is a private limited company. It obtained two plots, bearing Nos.47-A and 48-A (half) on lease from the Pakistan Small Industries Corporation (hereinafter referred to as the Corporation), in the Small Industries Estate, at Sialkot. It constructed a factory building thereon. On 16-10-1978, through its, Managing Director, Humayun Iqbal Sheikh, it entered into an agreement with the appellant for the sale of the factory building for a sum of Rs.4,75,000/- and received Rs. 10,0007- by way of earnest money. The terms of the agreement were incorporated in a document executed on the same date by both the parties. One of the terms of the agreement provided that the appellant would pay all the amounts due in respect of the plots and that the payments made on this account would be adjusted against the price of the factory building. Soon after the execution of the agreement respondent No. 1 applied to the Corporation for permission to transfer the plots to the appellant. The Corporation accorded the permission on 22-7-1979. 3. Apparently, respondent No.l had obtained a loan from the Muslim Commercial Bank and by way of security it had mortgaged the factory building with the Bank. It also owed a sum of Rs.50,000/- to the Corporation. The Bank obtained a decree against it and took out execution proceedings. On its request the appellant arranged with the Habib Bank Limited, Sialkot Cantonment, to be a surety in the sum of Rs.2,00,000/-. This arrangement remained valid for 2 months, but it does not appear that respondent No. 1 took advantage of it. It, however, cleared the decretal amount from its own resources. 4. There was some correspondence between the appellant and respondent No. 1 in which the parties accused each other of violating the agreement of 16-10-1978. Ultimately, on 6-10-1980 the appellant filed a suit for specific performance of the agreement. During the pendency of the suit respondent No.l sold the factory building to respondent No.2. In view of this changed position the appellant amended its plaint and impleaded respondent No.2 as well. 5. The suit was resisted by the respondents on a number of grounds. It was inter alia alleged that Humayun Iqbal Sheikh was not competent to enter into any agreement for the sale of the factory building with any one; there was no concluded agreement between the parties and that the parties were merely negotiating terms upon which the property in dispute might be sold to the appellant; and, that the appellant had been guilty of breach of the agreement inasmuch as it had failed to carry out its obligation with regard to paying mortgage amount to the Muslim Commercial Bank and the sums due to the Corporation. 6. After considering the evidence led by the parties the trial Court found that the document of 16-10-1978 represented an agreement for the sale of the factory building and that it was not merely a record of the negotiations preliminary to the entering of an agreement. However it held that Humayun Iqbal Sheikh was not competent to enter into an agreement on behalf of respondent No. 1, and thus there was no legal agreement for the sale of the factory building between the parties. Accordingly, it dismissed the suit. 7. From the judgment of the learned trial Court the appellant filed an appeal in the High Court. After reappraising the evidence a Division Bench came to the conclusion that under the Articles of Association of respondent No. 1 its Managing Director, Humayun Iqbal Sheikh, had all the power to enter into an agreement of the nature incorporated in the document of 16-10-1978; further, there was a valid agreement between the parties for the sale of the factory building to the appellant; however, the appellant had violated, a very material term of the agreement by not paying off the amounts due to the Bank and the Corporation and as such it had been guilty of the breach of the agreement; the appellant had brought the suit with inordinate delay which disentitled it to the equitable relief of specific performance; accordingly, it declined to interfere with the judgment of the trial Court. The appellant has now come in appeal to this Court. 8. Leave to appeal was granted to the appellant to consider the contention of the appellant that the Courts below had misconstrued the agreement by assigning to it the liabilities which did not belong to it with the result that it had been wrongly held to have violated the terms of the agreement. 9. The document executed by the parties on 16-10-1978 is Ex.PW.3/2 on the record. The material terms of the agreement read as follows: As already noticed, respondent No.l had taken a loan from the Muslim Commercial Bank and had mortgaged the factory building to secure the loan. The amount of the loan was about Rs.4,00,000/-. The Bank had obtained a decree against it. Subsequently, it cleared off the decretal amount from its own resources. Apart from that respondent No.l owed a sum of Rs. 50,0007- to the Corporation. This amount was subsequently paid by respondent No. 2. The High Court was of the view that without the payment of the loan to the Bank and the dues to the Corporation the factory building could not be sold nor could the sale deed be executed and registered in favour of the appellant; further, the appellant made no effort to liquidate its liabilities under the agreement in the matter of payment of the Bank's loan and the Corporation's dues and it was due to the non-fulfilment by the appellant of the most essential condition of the agreement, namely, payment of all outstanding dues in respect of the factory building, that the sale in its favour could not be finalized. 10. It is difficult to subscribe to the view taken by the High Court. Admittedly, at the request of respondent No. 1, the appellant had arranged with the local Branch of Habib Bank to act as surety in the sum of Rs.2,00,000/-. This surety was valid for a period of two months. There is nothing on the record to show that respondent No. 1 had asked the appellant to provide surety in a larger amount. Respondent No. 1 has also not offered any explanation why it did not avail of the surety which was actually furnished within the said period. In fact no one appeared on its behalf to state that it had at any stage called upon the appellant to clear off the mortgage debt in accordance with the terms of the agreement and that the appellant had declined to do so. As regards the amount owing to the Corporation it is no doubt true that under the agreement of 16-10-1978 it was to be paid by the appellant and that it did not do so till the institution of the suit. However, the non­ payment of the dues could hardly stand in the way of completing the sale as the amount thereof was to be adjusted against the price of the factory building. The respondents led no evidence to show that the non-payment of the said amount had put respondent No. 1 in a dis-advantageous position or otherwise harmed his interests in any manner. In the circumstances the omission of the appellant to pay the dues of the Corporation can hardly furnish a justification to deny specific performance of the agreement, particularly when respondent No.l had received a, fairly substantial amount by way of earnest money. 11. It was contended on behalf of the respondents that shortly after the execution of the deed of 16-10-1978 the appellant had lost interest in the property in dispute and therefore it was not keen to complete the sale. In this context reliance was placed upon a letter written in August, 1980, by the Joint Director of the Corporation to respondent No. 1. This letter is Ex. DW. 1/2 on the record. The relevant extract from the letter reads as follows: "The case for the sale of your project (sic) to M/s. Aman Industries has already been disposed off in a way that the party some how or the other was not interested to purchase your factory building and this Corporation has already allotted one 'B' category plot to them for the establishment of their unit at SIE Sialkot. No other case except as mentioned above for the sale of your unit, is building (sic) in the Head office. As far as the surcharge levied on PSIC due is concerned, it cannot be waived off at this stage and you will have to pay the entire amount of PSIC over dues including surcharge. You are, therefore, advised in your own interest to deposit the entire amount of over dues with PSIC and produce clearance certificate to this effect. You are also advised to submit your case for the sale of ' project, if you have any intending purchaser at present, with full justification and detail through the joint Director, Zone, PSIC, Lahore." The recital in the letter that the appellant was not interested in purchasing the factory building was merely an opinion of the Joint Director. He has not given any reason is support of his opinion. He was not examined by the respondents and thus the appellants were denied the opportunity of eliciting the basis of his opinion. The mere fact that the appellant had already been allotted a 'B' category plot did not necessarily imply that it was no longer interested in acquiring the factory building. As regards the delay in bringing the suit it is to be noticed that the agreement was entered into between the parties on 16-10-1978. The corporation gave its permission for the sale on 23/7/1979. Thereafter correspondence ensued between the parties. When the appellant came to know that respondent No. 1 was intending to sell the property in dispute to some one else it had a notice published in a national newspaper giving publicity to the agreement for sale in its favour. It is therefore quite clear that at no stage the appellant had given up its rights under the agreement so as to give an impression to respondent No. 1 who had received a substantial amount by way of earnest'money, that it was no longer interested in the agreement. In the circumstances there is no reason why it should have been denied specific performance of the agreement. It was stated on behalf of respondent No.2 that it was not aware of the agreement of 16-10-1978 between respondent No.l and the appellant when it purchased the factory building; subsequently, it made huge investments on the plots in question and raised a factory which at its present value was worth more than Rs.2 crores; thus, it was not a fit case where specific performance of the agreement should be allowed. This contention is without any merit. The rule of Us pendens is fully applicable in this case as respondent No. 2 purchased the factory building during the pendency of the suit. If it had made any inquiries from the office of the Corporation it would have come to know, if it had not learnt otherwise earlier, that an agreement for the sale of the factory building existed between the appellant and respondent No.l. There is hardly any equity in its favour. 14. For the reasons stated above we accept this appeal, set aside the judgments of the courts below and grant a decree for the specific performance as prayed by the appellant. There will be no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ1993SC 315 PLJ1993SC 315 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ, SALEEM AKHTAR AND WALI MUHAMMAD KHAN, JJ INAYATULLAH - Appellant versus C.C.-CUM-CHAIRMAN, DISTRICT ZAKAT COMMITTEE and 2 others - Respondents Civil Appeal No.7-Q of 1990, dismissed on 13-1-1993 (approved for reporting on 31-3-1993) [On appeal from judgment, dated 23-11-1989 of High Court of Baluchistan, Quetta, in Const Petition No.257 of 1989] Zakat and Ushr Ordinance, 1980 (XVIII of 1980) S.18(4) — Petitioner, a teacher — Whether he could become member of Zakat and Usher Committee — Question of — It is correct that qualification of residence is a very important condition, but had it been intention of legislature to make it permanent residence, same could have been provided more specifically — Although residence of some type is necessary but it need not be permanent — Salaried employees whether of Government, local authority or corporation which is under or controlled by Government, have been kept out of such representative organizations as is a local Zakat Council with exception of Imams and teachers of local mosques and schools — Held: Appellant being a salaried employee of Government, cannot be a member of local Zakat Committee — Appeal dismissed. [Pp.321& 322] A,B&C Mr. Mehta K.N. Kohli, AOR (absent) for Appellant. Raja M. Afsar, A.G. Baluchistan, and Mr. S.A.M.Quadrl, AOR for Respondents 1 and 3. Respondent No.2: Ex-parte. Date of hearing: 13-1-1993. JUDGMENT Muhammad Afzal Zullah, C.J. - This appeal through leave of the Court has arisen out of a controversy regarding constituent members of the Zakat Committee established under Zakat and Ushr Ordinance, 1980. Leave to appeal was granted as follows: "Leave to appeal has been sought; against the dismissal by the High Court, of a Constitutional (Writ) Petition; whereby it has been held (a) determine Ushr demand compulsorily realizable under this Ordinance and collect Zakat, Ushr and atiyyat, and disburse and utilise the moneys in the Local Zakat Fund; (b) for the purpose mentioned in clause (a), make plans for the locality; (c) prepare and maintain accounts of the Local Zakat Fund in such form and manners as may be prescribed; and (d) tender to the Tehsil, Taluqa of Sub-divisional Committee, as '.••• the case may be, advice on any matter connected with the collection, disbursement or utilization of Zakat or Ushr. (3) The Local Committee shall consist of "nine members, of whom two shall be Muslim women who are not less than forty-five years" selected by the residents of the locality in the manner specified in sub-section. (4) The District Committee shall constitute a team of [three or more persons including at least one gazetted officer, one Aalim-e- Deen and one member of the District Committee] to organize a public gathering of the adult Muslim residents of a locality and to call upon them to select, in the prescribed manner seven adult Muslims "resident in that locality who [are known to be pious and are not engaged in political activity and who] enjoy their trust to be the members of the Local Committee. Provided that a person who is a member of a team constituted for the selection of members of a Local Committee shall not be eligible to be a member of such Local Committee and @ [except in the case of such Local Committees in the Islamabad Capital Territory as may be notified by the Administrator-General] a person who is a salaried employee of Government or a local authority §@ [otherwise than as a Pesh Imam of a local mosque or a teacher of a local school or of a corporation set-up, owned or controlled by Government, shall not be eligible to be a member of a Local Committee. Inst.by Act.VII of 1990 Inserted by Ord. VII of 1983 Inserted by ord. VII of 1983 @ Added by Ord. LII of 1980 @@ Inserted by Ord. VII of 1983. [Provided further that, where in a district the number of Local Committees is so large that the members of the District Committee cannot be put on all the teams constituted for the selection of members of Local Committees in the district, the District Committee, may, at its discretion any other non-official person of the district to represent it on the said team]. [Provided further that the team constituted by the District Committee shall organise a separate gathering of the adult Muslim female residents of the locality and call upon them to select, in the prescribed manner, two Muslim women residing in that locality who are known to be pious and who enjoy their trust to be members of the Local Committee"; and not engaged in political activity]. "It is not denied that there is an exemption from disqualification for a "Teacher of a Local School". The precise question involved in this case is: whether, school meant here is with reference to the "locality" or with reference to the ownership or control" of the school by "a local committee". According to one side local "means, in the locality as is the case with the Pesh Imam of "local" mosque. The other point of view is that the expression "local school" has been used with reference to the next phrase; namely, "or of corporation set up, owned or controlled by Government"."The legal question involved in this case is one of first impression. Leave to appeal is, accordingly, granted". The learned counsel for the appellant is absent. However, the learned Advocate General Baluchistan has rendered assistance and while doing so remained highly fair to the cause and claim of the appellant. In addition to the provisions of Section 18 he read section 6 also which is as follows:- "6. Mode of assessment and collection of Ushr. (1) The Provincial Revenue Department shall assess and collect Ushr in respect of land-owner, guarantee, lessee, lease-holder or land holder in the prescribed manner, and maintain the record containing such information for a crop season as may be required" for the purposes of this Ordinance. Added by Ord. VII of 1983 Added by Act No.VII/90 dated 30-6-90 Subtd. by Act VII of 1990 (2) In the case of lease in force immediately before the commencement of this Ordinance, or, after the commencement of the Finance Act, 1990, the liability of the lessor and lessee to pay Ushr shall be equitably apportioned between them by the Tehsildar or, as the case may be Mukhtiarkar. (3) An assessee aggrieved by the assessment under sub-section (1), or as the case may be, a lessor or lessee aggrieved by the apportionment under sub-section (2), may, within thirty days of the Provincial Revenue Department announcing the assessment, or,.as the case may be, apportionment, apply, in the prescribed form and manner to the Assistant Commissioner or Sub-divisional Magistrate for a revision of the assessment or apportionment. Provided that no such application shall be admitted unless the applicant has deposited into the Local Zakat Fund not less than fifty per cent of his liability as assessed or apportioned by the Provincial Revenue Department. (4) The Assistant Commissioner or Sub-divisional Magistrate may, at any time, either of his own motion or on the application of an adult Muslim residing within his jurisdiction, make an order enhancing the liability assessed under sub-section (1) or apportioned under sub­ section (2): Provided that no such order shall be made unless the person affected has been given an opportunity of showing cause against it and of being heard. (5) The Assistant Commissioner or Sub-divisional Magistrate to whom an application is made under sub-section (3) or sub-section (4), or who takes up a matter under sub-section (4) of his own motion, shall give his decision within a period not exceeding one month counted from the date on which he receives the application or, as the case may be, so takes up the matter, and such decision shall be final and shall not be questioned before any Court or other authority. (6) The demand as determined under sub-section (1) or, as the case may be, under sub-section (4) or sub-section (5), shall be paid by the assessee and collected by the Provincial Revenue Department in such manner as may be prescribed and deposited into the Local Zakat Fund. (7) Where the recovery of Ushr compulsorily realizable under this Ordinance falls into arrears, the Tehsildar or, as the case may be, Mukhtiarkar shall proceed to recover the amount so specified as if it were an arrear of land revenue. He also brought to our notice the definition of Local Committees and locality as contained in Section 2 (xiii) and (xiv). They read as follows:- 2. Definitions. In this Ordinance, unless there is anything repugnant in the subject or context, - 0) (iii) .............................. (iv) .............................. (v) .............................. (vi) .............................. (vii) ....... ....................... (viii) .............................. (ix) .............................. (x) .............................. (xi) .............................. (xii) ..... - ........................ (xiii) 'Local Committee' means a committee constituted under section 18; (xiv) 'Locality' means the area within the jurisdiction of a Local Committee. " After considerable discussion and minute analysis of the governing provision of law which determines the qualifications and exception; namely, sub­ section (4) of Section 18, the learned Advocate-General spelt out the following positive/essential conditions for being a member of the Local Zakat Committee: (i) Should be an adult, (ii) Should be a Muslim, (iii) Should be a resident in the locality, (iv) Should be pious and enjoy the trust of the selection team visualised in sub-section (4) and that he should be a nonpolitician. In other words should not be engaged in political activity. These conditions are contained in the purview of sub-section (4) of Section 18. There are other conditions also contained in the relevant proviso thereto. For example, a member of the selection team cannot be a member of the local zakat . committee; a salaried employee of the Government or a local authority, set up under or controlled by the Government or a Corporation is also debarred except for the specified persons. Thus there is no serious difficulty that may be encountered in spelling out the conditions stated above. Learned counsel for the respondent also made it easy by conceding that there is no disqualification for the teacher of a local school or a Pesh Imam of a local mosque to be selected as a member of the Local Zakat Committee but he insisted that such Imam or teacher must be permanent resident of the locality as defined in Section 2(xiv) so as to justify and enjoy the position and trust of the local population.. It is correct that the qualification of residence is a very important condition; but had it been the intention of the legislature to -make it permanent residence the same could have been provided more specifically. Moreover, when the law was enacted it was well known that the teachers and Pesh Imams occupy such positions in which transfers from one locality to another in the same District are not un­ usual. Therefore, although residence of some type is necessary but it need not be permanent. Learned counsel then to be fair to the appellant conceded that there is a possible interpretation of the expression "salaried employee of the Government or local authority otherwise than as a teacher of a local school". It could be read so as to mean that even if a person is salaried employee of the Government but is the teacher of a local school, he would fall within the exception to the bar regarding salaried employees. Though this interpretation if accepted will lend to the acceptance of the appeal and the learned Advocate-General left it to the Court to adopt this construction of the relevant part of the proviso to sub-section (4) or the other one; namely, that the salaried employees of the Government, local Authority and a Corporation set up under or controlled by the Government, are debarred except the Pesh Imam or the teacher of a local mosque or a local school respectively; provided they are the employees of a "local authority" and not of Government, both to be read disjunctively on this question. After a fair amount of analysis and examination of the purposes of the law,; we are inclined to adopt the second interpretation. It also affirms the intention as] well as the language of the law. Salaried employees whether of Government, local authority or corporation which is under or controlled by the Government, have O been kept out of such representative organizations as is a local Zakat Council. But| an exception has been made regarding the Imams and teachers of local mosques and schools on account of their special qualification and position, vis-a-vis, the subject of Zakat - particularly its calculation, collection and distribution. Accordingly the appellant being the teacher of a local school would undoubtedly be qualified to become a member but, for another element in his employment. We have gone through the record in that connection and have also perused the certificate issued by the District Education Officer which shows that although he is the teacher of a local school but he is not the employee of a local authority. He is a salaried employee of the Government. As discussed above such a teacher of local school jwho is salaried employee of Government cannot be a member of the Local Zakat Committee. In the light of the foregoing discussion this appeal fails and is dismissed. 'There shall be no order as to costs. (MBC) (Approved for reporting) Appeal dismissed

PLJ 1993 SC 322 PLJ 1993 SC 322 [Appellate Jurisdiction] Present: DR. NASIM HASAN SHAH, SHAFIUR RAHMAN, SAAD SAOOD JAN, ABDUL SHAKURUL SALAM AND AJMAL MIAN, JJ. GOVERNMENT OF PUNJAB, THROUGH SECRETARY, FINANCE DEPARTMENT, LAHORE — Appellant. versus MUBARIK ALI KHAN and 8 others — Respondents. Civil Appeal No.78 of 1991 (also Civil Petition Nos.52 of 1992 and 26-P of 1992) dismissed on 30-3-1993 [On appeal from judgments dated 5-5-1991, 12-9-1991 and 23-12-1991, of Lahore High Court, Baluchistan High Court and Peshawar High Court respectively passed in I.C.A No. 189 of 1989, C.P. No. 148 of 1990 and W.P.No.2029 of 1991.] Secretariat Allowance High Courts employees ~ Grant of Secretariat Allowance to - Challenge to — View taken by Lahore High Court that employees of provincial High Courts are not civil servants for purposes of Civil Servants Act and Service Tribunals Act, is correct — Under Article 260 of Constitution of Pakistan, 1973, employees of High Court would fall within definition of "service of Pakistan" and have been taken to be employed in connection with affairs of a province — Legislature had not been given any role to determine terms and conditions of employees of Supreme Court and High Courts, including their remuneration, and both Supreme Court and High Courts have framed Rules — Distinction between Secretariat Staff and others was abolished when National Pay Scales were introduced in 1972 — After enforcement of Unified Pay Scales to all categories of employees, reversion to old categories of Secretariat and non-Secretariat Offices would be discriminatory — Held: High Courts employees cannot be discriminated against and necessary provision of Secretariat/Personal Allowance had to be made for them as was made in case of Federal Shariat Court and Supreme Court employees -- Appeal dismissed. [P331,332,334,336 & 337] A,B,C,D,E,F & G. 1989 PLC (CS) 42 rel. Ch. Muhammad Abdus Saleem, Advocate, Supreme Court, instructed by Ch. Muhammad Aslam, AOR for Appellant (in C.A. 78 of 1991) and for Petitioner (in C.P.L.A52of 1992). Mr. Hamid Saeed Malik. Addl. Advocate General, Peshawar for Petitioner (in CPLA No.26-P of 1992) Dr. Abdul Basil, Advocate, Supreme Court, for Respondents 1 to 8 (in C.A. 78 of 1991). Mr. Faqir Muhammad Khokhar, Deputy Attorney General, and Ch. Muhammad Aslam Chatha, AOR for Respondent No.9 (in C.A.78 of 1991). Mr. Muhammad Aslam Chishti, Advocate, Supreme Court, and Mr. S.A.M Quadri, AOR for Respondents 1 to 8 (in CPLA 52 of 1992). Mian Shakirullah Jan, AOR for Respondents, 1 to 10 (in CPLA No.26-P of 1992), Date of hearing 29-6-1992. JUDGMENT Shafiur Rahman, J. -- This judgment will dispose of one appeal No.78/1991 filed by the Government of the Punjab and two Petitions for leave to appeal (No.52/1992 and 26-P/92) filed by the Provinces of Baluchistan and N.W.F.P respectively. Leave to appeal was granted to the Government of the Punjab to examine whether the question of grant of 20 % of the Pay as Secretariat Allowance to the employees of the Lahore High Court establishment in a Constitution Petition was in accord with law notwithstanding the provisions of Article 212(3) of the Constitution excluding the jurisdiction of the High Court in such matters and there being proper classification available for distinguishing the case of the High Court establishment from those ,i the Secretariat employees. 2. From 1-7-1988, the Government of Pakistan granted vide Office Memorandum No.F. l(32)-IMP-H/88 dated 1st July, 1988, 20% of basic pay to the employees serving in the Federal Secretariat , President's Secretariat, Prime 'Minister's Secretariat, National Assembly Secretariat, Senate Secretariat and the Central Board Revenue known as ' Secretariat Allowance'. The Government of the Punjab issued an Office Memorandum (No.FD.PC-2-1/88) on the 8th August, 1988 in the following terms, granting/allowing the Secretariat Allowance to its own employees in terms as hereunder:- "I am directed to refer to the subject noted above and to say that the Governor of the Punjab has been pleased to decide that Secretariat Allowance @ 20% of basic pay to all employees in Punjab Government Secretariat, Governor's Secretariat, Chief Minister's Secretariat and Punjab Provincial Assembly Secretariat shall be ganted w.e.f. 1-7-1988. 2. All officers/officials working in the Secretariat, as described in para 1, who arfe already in receipt of any Special Pay/Allowance (except the categories of Private Secretaries/Personal Assistants to Governor Chief Minster, Ministers, Chief Secretary, Chairman P&D Board, Additional Chief Secretary, Secretaries and Additional Secretaries will also be allowed to exercise thejr option to draw Secretariat allowance mentioned above or to continue drawing their existing Special Pay/Allowance. 3. All Officers/officials deputed from other services/departments to work in the Secretariat, as described in para. 1 and who are getting Special Pay/Allowance will be similarly allowed to exercise their option to draw Secretariat Allowance @ 20 7c of their basic pay or to continue to draw their existing Special Pay/Allowance, it any. 4. As mentioned in para 2 & 3 above, option either to retain Special Pay/Allowance Governor's Secretariat Allowance/Chief Minister's Secretariat Allowance or to receive the Secretariat Allowance may be exercised by employees in writing and communicated to the Audit Office through administrative department on the form at Annex A by September 8,1988. A Government servant who fails to exercise option within the prescribed period shall be deemed to have opted for the Secretariat Allowance." 3. The Federal Government as well as the Provincial Government made additions to the category of employees who were treated as Secretariat employees for the purpose of this Allowance. The Federal Government included amongst the beneficiaries the employees of the Pakistan television and the employees of the Pakistan Broadcasting Corporation besides Central Board of Revenue. The Provincial Government enlarged the category of the recipients of this allowance by including the employees of the Provincial Board of Revenue. 4. The grant of this allowance to the Secretariat employees to the exclusion of others generated a lot of dissatisfaction and claims both from amongst the /Federal Government employees and the Provincial Government employees who were denied such an Allowance. Such dissatisfaction and claims had three visible effects. Firstly, the Federal Government itself revised the policy of grant of Secretariat Allowance and made the Allowance already granted a part of the pay as 'Personal Allowance' of the officers/officials in receipt of it and only limited it to the actual service in the Secretariat or in the other departments treated as Secretariat. This will be clear from the Finance Division's office memorandum No.F.7(15)-R.13/88(Pt) dated 1-2-1990, as hereunder:-Subject:DISCONTINUANCE OF SECRETARIAT ALLOWANCE FOR THE NEW INCUMBENTS In supersession of this Division's office Memoranda of even number dated the 18th December and 26th December, 1989, the undersigned is directed to say that the Federal Government has decided that 20% Secretariat Allowance admissible under this Division's O.M. No.F. l(32)-lmp. 11/88. dated the 1st July, 1988 and subsequent amendments made thereto will not be admissible to the new incumbents to the Secretariat, CBR, PTV and PBC etc. with effect from 11-12-1989. However, the existing recipients of the Secretariat Allowance have been allowed to retain it as ' personal allowance; subject to the following conditions: - Subject: D1S (i) The amount of Secretariat Allowance being drawn by the existing recipients as on 10-12-1989 would be frozen. (ii) It will be subject to income-tax and House Rent recovery." (iii) It will be admissible during leave and entire period of leave preparatory to retirement except during extraordinary leave. (iv) It would not be admissible during the period of suspension, and (v) It will not remain admissible to the recipients; on their transfer from the secretariat, CBR, PTV and PBC etc." It-was modified by another Office Memorandum dated 21-8-1991, as hereunder:- Subject: GRANT OF SECRETARIAT/PERSONAL ALLOWANCE. In partial modification of this Division's circular O.M.No.F.7(15) R.13/88(Pt) dated the 1st February, 1990, the undersigned is directed to state that the Federal Government has decided that with effect from 1st June, 1991 the Personal Allowance (in lieu of formerly allowed Secretariat Allowance) will be admissible at the rate of 20% of pay to the following: - (i) Officials already drawing this allowance as a Personal Allowance in accordance with this Division O.M. No.F.7(15)R.13/88(Pt), dated 1st February, 1990. (ii) Officials who have already drawn Secretariat or Personal Allowance in lieu and have been are reposted to Secretariat. (iii) Officers transferred from Provincial Governments who would have been eligible for this allowance in the Provincial Secretariats. " These two hold the field today. This action of the Federal Government of allowing/granting, of extending and of discontinuing the Secretariat Allowance attracted at one stage the attention of the Wafaqi Mohtasib (Ombudsman) also as reported in the Frontier Post dated 1-11-1992, ashereunder:- "The ombudsman further said that he had 70 complaints involving 84 persons who have protested about the discrimination and have sought his intervention. The Mohtasib while tracing the history of the secretariat allowance opined that an element of injustice was created right at the time when the Secretariat Allowance was sanctioned on the July 1, 1988. The Mohtasib said that discriminatory nature of the allowance is apparent from the fact that right in 1988 the allowance was also given to the employees of the Central Board of Revenue, which is clearly an attached department and employees of Pakistan Television Corporation and Pakistan Broadcasting Corporation, which are autonomous Corporations and have nothing to do with the secretariat. A further discriminatory element was introduced when at the time of stopping the allowance with effect from December 11, 1989, the government servants who were getting the allowance under the Provincial Governments were allowed to draw it again in the Federal Government, the Mohtasib observed." The second feature of the grant of such an Allowance was that a large number of employees, Provincial and Federal, belonging to Departments not treated as Secretariat approached the courts or the Service Tribunals for grant of similar relief for one reason or the other. Apart from the cases before us of the employees of the High Courts of Punjab, N.W.F.P. and Baluchistan, the employees of the Punjab Public Service Commission (PLJ 1992 S.C. 400), Federal Shariat Court (PLJ 1992 S.C. 393), Attorney General's office (CPLA 1118-L/91) »• Advocate-General's office (W.P.No.9111/91) and Central Board of Film Censors (1991 SCMR 1288) also approached either the Service Tribunal or the High Court for grant of such an allowance. The third consequence of the grant of this allowance and the denial of it to others was that the other authorities competent to grant it, for example, the Chief Justice of the Federal Shariat Court vide order dated 13-7-1988 and the Chief Justice of Supreme Court of Pakistan vide notification dated 17-2-1993 granted it in respect of their employees w.e.f. 1-7-1988.

C. A. 78/91 5. In this background of events, eight employees of the Lahore High Court tiled a Constitution Petition (Writ Petition No. 1624 of 1989) claiming that they be treated as secretariat employees and granted the Secretariat Allowance made available to the employees of the Provincial Secretariat. This petition was seriously contested. At first, the High Court allowed a number of opportunities to the parties to amicably settle the matter. It did not succeed. A second attempt thereafter was made in the light of exercise undertaken for amicably settling the matter by demonstrating the equivalence of the duties and the responsibilities of the two categories of employees. Preliminary objection to the competence of the Constitution Petition in view of Article 212 of the Constitution was brushed aside by reference to the decision of the same court in Manzoor Hussain and 37 others versus Province of the Punjab , [1989 PLC (CS) 42] followed by refusal to grant leave in the same vide Civil Petition for Leave to Appeal No. 1027/1988 and dismissal of the Civil Review Petition No.6-R of 1989 arising out of it on 8-10-1989. It was held on the strength of Article 208 of the Constitution that the employees of the High Court were not civil servants. It was further held that employees and servants of the High Court were similarly situated and working in similar circumstances as those working in the Secretariat of the Punjab Government and other institutions to which the notification allowing Secretariat Allowance has been made applicable. The Court placed reliance on D.S.Nakara and others versus Union of India (AIR 1983 S.C. 130), considered the discrimination established and directed the Government of the Punjab to make available all the benefits under the Memorandum dated 8-8-1988 to the employees of the High Court w.e.f. 1-7-1988. The arrears were ordered to be paid within three weeks. 6. An Intra Court appeal was filed by the Government of the Punjab which did not succeed. It was held that the disputed allowance was not confined to the Secretariat employees but had also been made available to the Provincial Assembly Secretariat and the Board of Revenue. 7. Rule 22 of the High Court Establishment (Appointment, and Conditions of Service) Rules invoked by the learned Judges while seized of the matter was held to provide the basis for grant of such an allowance to the High Court employees as well on the reasoning as hereunder:- "Under this rule the allowance admissible to all the civil servants generally under the relevant rules are admissible to the employees of the Establishment of the High Court though there are no rules with the nomenclature "Civil Service Rules (Punjab)" as used in Rule 22. The intention is, however, :mpli< it that whatever allowances etc. are admissible to the civil servants would automatically be allowed to the members of Establishment of High Court. The question arises whether the members of the High Court Establishment could claim any allowance which has not been granted to all the civil servants generally but to some of them as a class working in the Secretariat. In our view the respondents would be justified in claiming such an allowance as a matter of right as per force of said Rule 22 if the class of employees in the Government Secretariat to whom such an allowance was allowed was similarly placed as regards the nature of duties and the functions which they perform." The appeal bench undertook detailed scrutiny of the charts of the duties and affirmed the finding of the learned Judge in chambers with regard to the equivalence. The appeal bench concluded as hereunder:- "For this additional reason we are constrained to hold that the denial to the respondents of the allowance in question is not only highly arbitrary but the denial of their right to get the allowance under Rule 22 of the High Court Establishment (Appointment and Conditions of Service) Rules, is also violative of Article 25 of the Constitution which guarantees equal protection of law to all the citizens and we uphold the view taken by the learned Single Judge." C.A. 26-P/92 8. Ten employees of the High Court of Peshawar by a Constitution Petition (No.2029/1991) claimed the Secretariat Allowance at the rate of 20% which had been granted by the Government of North-West Frontier Province (N.W.F.P) from an earlier date i.e., from July, 1987. Heavy reliance was placed for making out a claim for the grant of such an Allowance on the judgment of the Lahore High Court in Writ Petition referred to. An application for interim order claiming such an Allowance came up for consideration of the Peshawar High Court on 23-12- 1991 in the presence of the Additional Advocate General and was disposed of with the following orden-"The respondents are directed to pay the 20% allowance to the employees of the Peshawar High Court regularly with the monthly pay from the 1st January 1992 till the final disposal of the writ petition. The question of arrears will be considered on the next date of hearing."This order was modified on 12-1-1992. as hereunder:- "The order dated 23-12-1991 passed by this court is modified to the extent that the employees of the Peshawar High Court are entitled to receive 20% allowance with their monthly pay from 1st of January, 1992 payable on 1st of Fehruar>. 1992, regularly, till the final disposal of the writ petition. So tar as the question of arrears is concerned, the learned counsel for the petitioners is not pressing it at the moment, therefore, it will be decided at the time of final disposal of the writ petition. On the request of the learned Advocate General let the main writ petition be fixed for final hearing within two months." The proceedings were at this stage in the High Court when this Petition for leave to appeal was filed and was ordered to come up with Civil Appeal No.78/1991. C P. 52/1992 9. Seventeen employees of the establishment of the High Court of Baluchistan filed a Constitution Petition (No. 148 of 1990) claiming in circumstances similar to those pointed out in the above two matters. The grant of the Secretariat allowance which had been made available to the employees in the Baluchistan Secretariat, Governor's Secretariat, Chief Minister's Secretariat and Baluchistan Provincial Assembly Secretariat vide notification dated 4th of September, 1988. There was another Constitution Petition filed by the drivers who claimed the enhanced over-time Allowance made available to the Governor's and Chief Minister's establishment drivers. 10. The High Court of Baluchistan examined the claim of the employees of the High Court for the Secretariat Allowance in the light of the decision given by the Lahore High Court and decided the matter as hereunder:- "Indeed the refusal of Government of Baluchistan to extend the benefits of Notification C.P. 148/90, Notification F. No. 1(32)- IMP.1I/88 dated 1st July 1988 and Notification No.FD(R)Il-28/88.- 3454-3484 dated 4th September, 1988, C.P. 105/90, Notification No.SGA (SC B&A) 2-14/87 dated 4th February 1989 to the employees of High Court Additional Adovocate-General was also reluctant to draw the case and advised verbally against the filing of civil petition for special leave to appeal. 4. That ultimately the Finance Secretary through deponent has to request the Finance Secretary, Government of Punjab in order to file present petition through their counsel. Hence this petition is being filed within few days." lowever, as the question is being dealt with on its own merits also, the decision /ill follow the other matters properly initiated in this court. 12. The view taken by the Lahore High Court that the employees of the High 'ourt are not civil servants is based on the decision L'i\en b> a Division Bench in le case of Manzoor Husxain and 37 others (sujini) v.ho were scr\ mg a< Private ecretaries in the Lahore High Court and had by a Constitution Petition claimed pgradation of their post from BPS-16 to 17 w.e.f. 1-7-1983 on the basis of a lemorandum of the Government of the Punjab dated 18th of March 1986. A milar objection with regard to the jurisdiction was taken. It was indeed rejected id the employees of the High Court establishment were held to be not civil :rvants. The reasoning given appears as hereunden-"The expression" civil servant" has been defined in Section 2(b) of the Punjab Civil Servants Act (VIII of 1974). According to this definition, a civil servant means a person who is a member of a civil service of the Province or who holds a civil post in connection with the affairs of the Province. The Punjab Civil Servants Act (VIII of 1974) has been enacted to regulate the appointment to, and the terms and conditions of service in respect of the service of the Province of the Punjab. This law has been enacted pursuant to Article 240 of the Constitution of Islamic Republic of Pakistan which empowers the Provincial Legislature to make law to determine the conditions regarding appointment and other terms and conditions of service in case of services of the province. It is, however, noteworthy that the law thus to be made by the Provincial Legislature is subject to the constitution as provided in the opening words ot Article 240 supra. Article 208 ibid speaks of officers and servants of the Supreme Court and of a High Court. This Article empowers a High Court to make rules providing tor the appointment by the Court of officers and servants of the Court and for their terms and conditions of employment. Such rules are, of course, to be made with the approval of the Governor concerned. In case of this High Court, such rules have already been framed in the form of the High Court Establishment (Appointment and Conditions of Service) Rules. Prospects of promotion and upgradation of a post has never been considered a term and condition of service for which the Service Tribunal has exclusive jurisdiction. In this behalf reference may be made to the case of Dr. Ehstm-ul-Hq v. The Province of Punjab and others 1980 S.C.M.R. 972. In the light of the above discussion, it is concluded that the petitioners, being officers and servants of the High Court, do not fall within the ambit of expression "civil servant" as occurring in section 2(b) of the Punjab Civil Servants Act (VIII of 1974) and, therefore, according to their terms and conditions of service, the jurisdiction of the High Court is not excluded." This judgment did come up to this Court twice; once by means of a Petition fo leave to appeal and next by way of Civil Review Petition No.6-R/1989 alongwit other connected matters (C.R.P. 34-R and 35-R/1989 and C.P.L.A No. 10 and 1 of 1989) but at no stage this question was attended to directly or indirectly. Th Petitions for leave to appeal as well as the review petitions arising out of them wer disposed of on the question of limitation and not considered on merits at all. Th view taken by the High Court that the employees of the Provincial High Courts ar not civil servants for the purposes of Civil Servants Act and the Service Tribunal Act is correct. 13. In the Constitution of Pakistan, 1973 "service of Pakistan" has been definec in Article 260, as hereunder:- "'Service of Pakistan' means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis -e-Shoora (Parliament) or of a Provincial Assembly, but does not include Service as Speaker, Deputy Speaker, Chairman, • Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate- General, Parliamentary Secretary or Chairman or Member of a Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister Special Assistant to a Chief Minister, Adviser to a Chief Minister or Member of a House or a Provincial Assembly." This definition of "service of Pakistan" itself divides those included into it into two broad categories i.e. one of those employed in connection with the affairs of the Federation and the other of those employed in connection with the affairs of a Province. Applying this definition, the employees of the High Court establishment would fall within the definition of service of Pakistan and have been taken to be employed in connection with the affairs of a Province.Article 240 of the 1973 Constitution reads as hereunder:- "240. Appointments to service of Pakistan and conditions of service. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined- (a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament); and (b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly. Explanation.- In this Article, "All-Pakistan Service" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Majlis -e- Shoora (Parliament)."Article 208 of the 1973 Constitution provides as hereunder:- "208. Officers and servants of Courts.- The Supreme Court and the Federal Shariat Court , with the approval of the President and a High Court, with the approval of the Governor concerned, may make rules providing for the appointment by the Court of Officers and servants of the Court and for their terms and conditions of employment." 14. In the 1962 Constitution, Article 127 dealt similarly with the same subjecjt, as hereunder:- "127. Officers and servants of Courts. (1) In this Article, "Court" means the Supreme Court or a High Court. (2) A Court may (with the approval of the President in the case of the Supreme Court, and of the Governor in the case of a High Court) make Rules providing for the appointment by the Court of officers and servants of the Court, and for their terms and conditions of employment." The comparable provision in the Indian Constitution is Article 146 and it reads a hereunder;- " 146. Officers and servants and the expenses of the Supreme Court. (1) Appointments .of officers and servants of the Supreme Court shall be made by the Chief Justice of India or such other Judge or officer of the Court as he may direct:Provided that the President may by rule require that in such cases as may be specified in the.rule, no person not already attached to the Court shall be appointed to any office connected with the Court, save after consultation with the Union Public Service Commission. (2) Subject to the provisions of any law made by Parliament, the onditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the Court authorised by the Chief Justice of India to make rules for the purpose: Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President. (3) The administrative expenses of the Supreme Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of India, and any fees or other moneys taken by the Court shall form part of that Fund." 15. In the context of the constitutional provisions reproduced above, it is clear that in the matter of the officers and servants employed in the establishment of the Supreme Court of Pakistan and the High Court the legislature had not been given any role to determine the terms and conditions of the employees which of course would include their remuneration also. Such an exclusionary role was attributed to the requirement of maintaining the independence of judiciary in the case of Supreme Court Employees Welfare Association vs. Union of India and others (AIR 1990 S.C. 334). In exercise of this or its predecessor provision both the Supreme Court and the High Courts have framed Rules. Rule 17 and 22 of these Rules in respect of the High Court are as hereunder:- "17. Members of the High Court Establishment shall be entitled to pay (including Special pay) and allowances as fixed by the Chief Justice, from time to time, with the approval of the Governor to these rules." "22. In respect of salaries, allowances, leave or pension, the members of the establishment shall be governed by the Civil Service Rules (Punjab) as amended from time to time". 16. It is admitted that under Rule 17, no separate dispensation with the approval of the Governor has taken place in respect of pay and allowances. For this reason the residuary Rule 22 gets attracted. 17. A survey of the Pay Scales for the last fifty years on the subcontinent establishes for certain that for a long time in the past the secretariat staff had a preferential pay scales over other departments and offices of the Government. In India this practice still continues as would be apparent from the following decisions of the Indian Supreme Court:- (1) Umesh Chandra Gupta and others vs. Oil and Natural Gas Commission and others (AIR 1989 S.C. 29); (2) V. Markendeya ami others vs. State of Andhra Pradesh and others (AIR 1989 S.C. 1308); and (3) Federation of All India Customs and Central Excise Stenographers (Recognized) and others vs. Union of India and others (AIR 1988 S.C. 1291). 18. In Pakistan , however, the admitted position is that this distinction between the secretariat staff enblock and others was abolished when National Pay Scales were introduced in 1972. From 1977 classification was made and established criteria for allowances notified as hereunden- "(i) Geographical Allowances: Compensation according to the geographical hardship of the employees e..g. Kashmir Compensatory Allowance, Northern Area Allowance, Hill Allowance, Hard Area Allowance, Special Area Compensatory Allowance, Agency Allowance. (ii) Qualification Allowances Granted in recognition to academic ability specific qualifications and skill of the employee e.g. Ph.D. Allowance, Computer Allowance, N.D.C Allowance, Language Allowance. i (iii) Service Allowances: These are attached with the specific services in recognition to the type and colour of service and requirements of their assignment e.g. allowances attached to the Army personnel like disturbance allowance, Kit allowance etc. Superior Judiciary Office Allowance; admissible to the Judiciary, Railways Running Allowance; admissible only in Railways Services, Non-Practice Allowance allowed to the Doctors only, Aviation Allowance meant for Aviation services, Secretariat Allowance payable to Secretariat employees. (iv) Hazard Allowances: These are meant to compensate tor the hazards of the job encountered by the employees e.g. Neuclear Power Generation Allowance Danger Money Allowance, Bomb Disposal Allowance, Heat Allowance, Spray Allowance etc. (v) Allowances according to the nature of job: Shift Allowance, Research Allowance, Design Allowance, Project Allowance, Technical Allowance, Instructional Allowance, Night Duty Allowance, Anesthesia Allowance. (vi) Compensatory Allowances: To compensate the expenses required to be incurred by the employees e.g. House Rent Allowance, Conveyance Allowance, Washing Allowance, Uniform Allowance, Entertainment Allowance, Education Allowance etc. (vii) Costs of Living Allowances: Foreign Allowance paid in Foreign Missions, which varies from Mission to Mission according to the costs of living prevailing at those places. (viii) Allowances specific to the Houses, of Head of the State and the Governments: Prime Minister's House Allowance, President's House Allowance, Governors House Allowance etc. where special allowance is admissible in addition to the subsidies provided in the utilities like water, fuel, electricity and furnishings etc." There were certain posts and certain officers who were compensated separately. Non-secretariat officers appointed Deputy Secretary were allowed Special Pay of Rs.400/- w.e.f. 1-7-1983. It was extended in 1985 to make it 20% to Deputy Secretaries and equivalent in Federal Secretariat including President/Prime Minister/National Assembly and Senate Secretariats with effect from 1-11-1985. In 1987, recommendations were made by the National Pay Commission but the Government did not accept it and froze 20% Special Allowance and existing Deputy Secretaries and equivalent in secretariats and for future this allowance was allowed at a fixed rate of Rs.300/- p.m. with effect from 1-7-1987. All this is culled out from the material provided by the Government of Pakistan in Government of Pakistan through Secretary, Ministry of Finance, Islamabad versus M.l.Cheema and others (Civil Appeal No. 16 ot 1992 - decided on 29-6-1992 reported as PLJ 1992 SC 393), where a specific direction was given to the following effect on the day leave was granted in the case:- "The Advocate-General, Punjab and the Deputy Attorney General for Pakistan should be called upon to tile a self-contained exhaustive note supported by all the official instructions that have issued during the last fifty years, if not more, with regard to the Secretariat and non-Secretariat Scales of Pay from time to time, within one month, to be available to the parties before hearing of the appeals". 19. In spite of the direction given no material has been placed before this Court or was placed before any of the High Courts showing any reason whatsoever for the re-emergence of categories of Secretariat and non-Secretariat employees and for assimilating certain non-Secretariat offices as Secretariat Offices for the purpose of .this Allowance. In the absence of any reason forthcoming on the record after the enforcement of the Unified Pay Scales to all categories of employees, such a reversion to old categories would appear to be discriminatory. 20. The legal question that in the matter of pension and Pay no such discrimination can take place has been answered by this court in I.A. Shanvani and others versus Government of Pakistan through Secretary Finance Division and others (1991 SCMR 1041). The factual question of equivalence of the duties, responsibilities, confidentialitie etc. is ordinarily not a fit subject for adjudication by the High Court but has to be determined initially by a full-fledged exercise to be undertaken by the National Pay Commission, as such. For the employees of the High Court the position is for better. The employees of the Federal Shariat Court and the Supreme Court of Pakistan have been allowed such an Allowance. The High Court employees perform almost identical functions as do the employees of these two other courts perform. The employees of all the three courts have been dealt with constitutionally by the same provision reproduced above. In the circumstances, the High Courts employees cannot be discriminated against. The necessary provision of Secretariat/Personal Allowance had to be made in respoect of such employees as was made in the case of the Federal Shariat Court and the Supreme Court employees. 21. In the circumstances, no case is made out for our interference in the impugned judgment/orders of the High Courts. Hence, the appeal is dismissed with no order as to costs and leave to appeal is refused in the two other petitions. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 337 PLJ 1993 SC 337 [Appellate Jurisdiction] Present: SHAFiuR rahman and sajjad ali shah, JJ UMAR BAKHSH and 2 others-Appellants Versus AZIM KHAN and 12 others-Respondents Civil Appeal No. 1351 of 1990, accepted on 30.11.1992 (approved for reporting on 5.12.1992 [On appeal from judgment and decree of Lahore High Court, dated 5.12.1989, passed in RSA No. 279 of 1975] Civil Procedure Code, 1908 (V of 1908)-- —O.XXIII Rr. 1 and 3 read with Section 151--Pre-emption--Suit for- Application for withdrawal from suit due to compromise—Suit dismissed by High Court as having been withdrawn-Challenge to-Document Ex.C-1 is not stamped and is not a contract as element of consideration is conspicuously missing in it-Present appellants were decree-holders and were respondents before High Court and they could not possibly be expected to agree with withdrawal of suit without any consideration—Compromise Ex.C-1 was not complete because it is specifically mentioned therein that it had to be produced in court and it could only be acted upon after recording statements of present appellants agreeing that appeal of respondents be accepted-Held: If before court one party to document resiles from it, then document can be called anything but not an agreement or compromise—Appeal accepted. [Pp.341,342&343]A,B&C 1971SCMR 537, PLJ 1986 SC 431, and 1987 SCMR.1983 discussed. Mr. A.R. Shaukat, Senior Advocate, Supreme Court, and Mr. Tanvir Ahmad, AOR for Appellants. Rana Abdul Rahim, Advocate, Supreme Court, and Mr. Mahmood A. Qureshi, AOR for Respondents. Date of hearing: 30.11.1992. judgment Sajjad Ali Shah, J.-This appeal with leave is directed against judgment and decree dated 5.12.1989 of the Lahore High Court at Lahore, whereby R.S.A. No. 279 of 1975 is dismissed and R.S A.No.213 of 1975 filed by Azim Khan is accepted and decree for possession by pre-emption of the suit land is set aside and suit is dismissed as withdrawn with no order as to costs. 2. Briefly stated the relevant facts in the background are that land measuring 59 kanals and 13 marlas in revenue estate of Village Said Baloch, Tehsil Mailsi, District Multan (now District Vehari) was purchased by Azim Khan respondent No. 1 herein, vide registered sale deed dated 10.1.1964 for consideration of Rs. 12,000/-. Sale was sought to be pre-empted by Nooray Khan (predecessor-in-interest of appellants herein) and Saddoo Khan (predecessor-ininterest of respondents No.2 to 13 herein) by means of a joint suit claiming superior right of pre-emption for being collaterals of the vendors. During the trial proceedings, Saddoo Khan admitted claim of the vendee/defendant in the suit and he was transposed in the suit as defendant on the request of Nooray Khan. Saddoo Khan challenged his transposition in Civil Revision before the Lahore High Court but without success. Trial Court dismissed suit of Nooray Khan as time-barred vide judgment and decree dated 7.1.1974. Against that decision, two appeals were filed, one by Nooray Khan and the other by successors-in-interest of Saddoo Khan, who had died during pendency of the suit. First Appellate Court accepted appeal of Nooray Khan and accordingly his suit was decreed. Appeal filed by successors-in-interest of Saddoo Khan was dismissed. In the High Court, R.S.A. No. 213 of 1975 was filed by Azim Khan and R.S.A. No.279 of 1975 was filed by successors-in-interest of Saddoo Khan. 3. During pendency of these appeals in the High Court, in R.S A. No. 213 of 1975 C.M. No. 1909/C of 1987 was filed by Azim Khan under Section 151 read with Order XXIII Rule 1 C.P.C. claiming that parties had entered into compromise agreement on 4.7.1987, hence statement of Umer Bakhsh and others (appellants herein) be recorded and they may be allowed to withdraw the suit. This application was opposed by appellants herein on the ground that agreement between the parties and party of the second part (appellants herein) are ready to concede the appeal and withdraw their pre-emption suit against Azim Khan and further they are ready to give statement that names of legal representatives of Saddoo Khan be deleted in view of judgment in C.R. No.172/1968 of High Court delivered on 24.4.1972. Paryer clause of the application (at page 90 of the paper book) reads as under:- "In view of above circumstances, it is therefore, humbly prayed that compromise statements of plaintiffs/respondents may kindly be recorded and they may kindly be allowed to withdraw their suit and money deposited by them. Any other necessary order in respect of appeal may kindly also be passed." 7. On 3.12.1989 reply was filed by Umer Bakhsh and others against C.M. No.1909/87 in which stand has been taken that compromise and affidavits could not be acted upon as the same are without consideration. Compromise was drawn up on verbal assurance of Azim Khan that he would get 8 acres of land from Ghulam Mastan Khan for them but this condition was not fulfilled. It is further stated that compromise was. conditional and incomplete and had it been complete, it would have been acted upon immediately and several adjournments would not have been granted. Compromise did not mention consideration and it was settled between the parties that Azim Khan would get 8 acres of land from Ghulam Mastan Khan for them which was not done and, therefore, compromise was abandoned and prayer was made that C.M. No.1909/87 be dismissed. Alongwith reply three affidavits of Umer Bakhsh and others were filed mentioning the fact that compromise was conditional and condition was not fulfilled. 8. In this Court several order sheets from the record of the High Court have been produced which are included in the paper book. One thing is very conspicuous that C.M. No.1909 of 1987 was filed on 29.7.1987 and order was passed by the High Court on it on 5.12.1989 and, therefore, this application was pending final orders for about 2 years and 5 months. Order sheet dated 28.9.1987 at page 40 of the paper book mentions the fact that application for compromise was on the file and still learned counsel for the parties requested that the case may be adjourned to 5.10.1987. After that consent dates by the parties were being taken, till on 28.10.1989 (page 52 of paper book) the Court directed respondents (appellants before us) to submit reply to C.M. No.1909 of 1987 within two weeks. Since compromise hi writing was drafted by Ch. Mohammad Yaqoob Kung, Advocate of Khuda Bakhsh and others, his statement was also recorded. On 3.12.1989 joint statement of Muhammad Ashiq, Khuda Bakhsh and Umer Bakhsh was recorded in which they have reiterated that compromise was conditional and Azim Khan had promised to purchase for them 8 acres of land from Ghulam Mastan Khan which he failed to do and, therefore, compromise could not materialise. On the same day statement of Ch. Muhammad Yaqoob Kung Advocate was also recorded in which he stated that he had drafted the compromise which was admitted to be correct by both parties and in his presence money was not passed nor Azim Khan undertook to purchase 8 acres of land from Mastan Khan for Umer Bakhsh and others. On the third day of writing of compromise Umer Bakhsh and others came to bun and informed him that they will not give statements according to compromise as agreement was not fulfilled. Statement of Azim Khan was also recorded in which he stated that written compromise Ex.C-1 was thumb marked by Umer Bakhsh and others after contents were read out to them and he had paid Rs. one lac in cash after which document was thumb marked by them. He further denied that he had promised to purchase 8 acres of land for them from Mastan Khan. 9. While dealing with compromise deed Ex.C-1 in the light of evidence of the parties recorded, High Court has come to the conclusion that the case is covered by Order XXIII Rule 3 C.P.C. and suit of Umer Bakhsh and others was adjusted wholly by lawful compromise relying upon statement of Ch. Muhammad Yaqoob Kung, Advocate. 10 We regret that we do not agree with this finding for the reason firstly that document Ex. C-l is not stamped and is not a contract as element of consideration is conspicuously missing in it. It is, therefore, not a contract, grant or other disposition of property reduced to the from of a document strictly according to law excluding evidence of oral agreement as contemplated under Section 92 of the Evidence Act and now Article 103 of Qanun-e-Shahadat. Proviso 2 of Article 103 of Qanun-e-Shahadat envisages that if document is silent with regard to any matter about which oral agreement exists, then the same is allowed to be produced provided it is not inconsistent with the document. Umer Bakhsh and others are decree-holders and were respondents before the High Court and they could not possibly be expected to agree to withdrawal of suit without any consideration. Order XXIII Rule 3 C.P.C. requires that the Court shall order compromise of suit to be recorded when it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise or where the defendant satisfies the plaintiff in respect of whole or any part of the subject matter of the suit. In Ex. C-l admittedly there is no mention about consideration. Both parties have different versions. According to Umer Bakhsh and others, 8 acres of land was to be purchased for which there was oral agreement and according to Azim Khan the other party had accepted Rs. one lac. Ch. Muhammad Yaqoob Kung Advocate, who wrote the compromise stated that in his presence no money was passed and no undertaking was given by Azim Khan. He had not supported version of any party with regard to what transpired apart from what was reduced in writing. In cross-examination he admitted that on the third day Umer Bakhsh and others came to him and informed him that compromise had failed. 11. One other important factor is that this compromise Ex.C-1 was not Complete because it is specifically mentioned therein that it had to be produced in the Court and party of the second part (Umer Bakhsh and others) had to give statements in the Court and only after that it would be considered as acted upon because in the result Umer Bakhsh and others had to agree that appeal by Azun Khan be allowed and they be allowed to withdraw their suit. It, therefore, manifestly follows that the compromise would be complete only when it is accepted by the Court and orders are passed by the Court as desired by the parties. Court would consider the document to be compromise when both parties singing it agree and reiterate the contents before the Court. If before the Court one party to the document resiles from it, then the document can be called anything but (not) an agreement or compromise. 12. In the case of Ghulam Qadir vs Fazal Din and others (1971 SCMR 537) draft compromise was repudiated by a party on the grounds that it was not read over in its entirety and fair copy was not signed as it had been altered by the other party and it was held by this Court that the Co'urt should have refused to act on such compromise under Order XXIII Rule 3 C.P.C. as it was repudiated at the earliest opportunity. In the instant case as per statement of Ch. Muhammad Yaqoob Kung on the third day after compromise was reduced to writing Umer Bakhsh and others came and informed him that it was not to be acted upon and further order sheets of the record of the High Court also show that after application was filed in the Court, adjournments were being.sought with consent of the parties and final orders were passed on the application after more than two years. In the case of Muhammad Shaft and others vs Allah Dad Khan (PLJ 1986 Supreme Court 431) scope of Section 92 of the Evidence Act was examined and it was held that rule of evidence does not fetter powers of the Court to unveil real transaction where the validity of the document itself is challenged and to ascertain real nature of transaction. Reference can be made to the case of Haji Muhammad Iqbal vs. Muhammad Abbas and others (1987 SCMR 1983) in which during pendency of election petition before the Tribunal parties came to compromise for fresh counting of votes. Later record containing ballot papers was found to be tampered with and • notwithstanding Tribunal enforced compromise despite objections raised by the respondents in the petition. Decision of the Election Tribunal was set aside by the High Court holding that agreement was arrived at and acted upon under a common mistake of fact and Tribunal fell into a serious legal error in pronouncing judgment based on record which was tampered with' and shorn of authenticity and remanded proceedings for trying election petition in accordance with law. This Court affirmed the view of the High Court and held that a judicial or quasi-judicial determination, to inspire confidence and to command respect must be based on record or material beyond suspicion and reproach and hi consequence refused leave to appeal. 13. For facts and reasons stated above, we set aside judgment and decree of the High Court and allow this appeal and remand the case back to the High Court for decision on merits. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 343 PLJ 1993 SC 343 [Appellate Jurisdiction] Present: abdul QADEER CHAUDHRY and saiduzzaman siddiqui, JJ Sahibzada MUSTAFA and another-Appellants Versus WAZIR MUHAMMAD AWAN and 9 others-Respondents Civil Appeal No. 714 of 1992, accepted on 12.4.1993 (approved for reporting on 3.5.1993) [On appeal from judgment of Peshawar High Court, dated 4.3.1992, passed in F.A.O. No. 41 of 1991] Default- —Tenant-Default in payment of rent by-Striking off defence of~Challenge to- -Manager of bank who was an independent witness, had categorically stated before Rent Controller that normally no further deposits are accepted after 01.00 P.M., but Cashier at counter has discretion, keeping in view difficulty of a client, to accept payment but in such an event, transaction is recorded in register on following working day-Assumption of Chief Justice that Rent Controller did not believe statement of Bank Manager that amount was deposited by appellants on 5.1.1991 in late hours and so it- was shown'as deposited on 6.1.1991, was not correct-Rent for December, 1990, could be deposited under law upto 4.1.1991 and it being closed public holiday appellants could deposit rent on 5.1.1991-Held: Deposit of rent by appellants on 5.1.1991 though entered hi bank record as on 6.1.1991, amounted.to due compliance of Rent Controller's order and defence could not be struck off—Appeal accepted. [Pp.345,346&347]A&B Mr. Anwar H. Mir, A.O.R., for Appellants. Respondents: Not represented. Date of hearing: 12.4.1993. judgment Saiduzzaman Siddiqui, J.-The appellants have called hi question, in the above appeal through leave of this Court, the order passed by the learned Chief Justice of Peshawar High Court dismissing the appeal of the appellants and confirming the order of Rent Controller passed in the above case. Leave granting order in the above case is as follows:-- "In this case of striking off of the defence of the petitioner/tenant in an urban property 'tenancy case,' falling within the Cantonment area, leave to appeal has been sought on various grounds, inter-alia; that whatever was possible for the tenant side, for the purpose of depositing the rent was done but the deposit could not be effectuated within the prescribed time for reasons beyond the petitioner's control. They, amongst the other included - Firstly, that on the 4th of the month the deposit could not be made as it was Friday and on 5th i.e., the next available day the bank having received the amount could not make it as a deposit on account of its own practice. The statement of the Bank Manager has been relied upon in this behalf. This and other features in the case require examination. Leave to appeal, accordingly, is granted. Stay to continue in the meanwhile." The admitted facts hi the case are that the appellants were required to deposit monthly rent in a rent case instituted against them by the respondent, under orders of the Rent Controller dated 27.11.1988, at the rate of Rs. 50/- per month from December 1988. The rent was to be deposited in Court for each calendar month before 5th of the following month. During the pendency of the rent case, the respondents moved an application before the Rent Controller for striking off the defence of appellants, alleging default in payment of rent for the month of December 1990. The appellants resisted the application and took the plea that they could not deposit the rent for the month of December 1990 on 4th January 1991, as it was a Friday, and when they deposited, the rent in the bank on the next day, namely, 5th of January 1991, the banking hours were over, so the amount was shown credited in the books of bank on 6th of January 1991. In support of the above contention, the appellants examined the bank Manager who categorically stated in cross examination that the amount of rent was deposited by the appellants at the counter of the bank on 5th of January 1991. However, as the banking hours were over and transactions were closed at I'O clock, the amount deposited by the appellants was entered in the record on the following date namely 6th of January 1991. The learned Chief Justice of Peshawar High Court, while disposing of the contention of the appellants, that they deposited the rent on 5th of January, 1991 but it was entered as having been paid on 6th because the dealing at counter had been closed at I'O clock on 5th January, observed as follows: ~ "8. There is force in the arguments of the learned counsel for the respondents that the tenant was not supposed to have waited for the last date for making the deposit and if he has done so, he has done it at his own risk. The statement of the bank Manager who was neither the recipient of the rent nor scribe of the so-called entry in the register, that the rent had been paid a day earlier but could not be deposited as the bank was closed, was correctly discarded by the learned Controller of Rent. There is nothing on the record as to whom in the bank the respondent had paid the monthly rent and in which capacity the rent was accepted and then deposited on the next day i.e. 6th of January. Burden of proof of all these facts was on the respondent which he failed to discharge. In Muhammad Anwar v. Abdul Shakoor, it was observed by their lordships of the Supreme Court that points not raised in the Courts below could not be permitted to be raised in appeal before the Supreme Court. Relying on such dictum when the respondent himself has set up a case that the rent of the month of December payable before 5th of January was in dispute while explaining the delay for 4th of January being Friday, he cannot be allowed to turn round and raise a new and quite different plea. Their lordships further observed that when an order of default attains finality and the same is violated, the Controller of Rent is left with no alternative but to strike off the defence. In Salahuddin v. Additional District Judge and a Division Bench judgment of this Court fully support the landlord-respondent's case. In that case deposit of rent on 15th was held to be violative of the order of the Rent Controller directing such deposit before 15th of the month." With utmost respect, we are unable to subscribe to the above line of reasoning. The Manager of the Bank, where the appellants deposited the monthly rent, was examined in the case. He was an Independent witness. He had categorically stated before the Rent Controller that although, normally when the transaction in the bank is closed at 0100 p.m. no further deposits are accepted, however, the Cashier at the counter in his discretion, keeping in view the difficulty of a client, may accept the payment but in such an -event the transaction is recorded in the register on the following working day of the bank. The above statement made by the bank Manager remained consistent and there is nothing on the record to show that either the bank Manager was deposing falsely or had any motive to make the above statement. The learned Chief Justice proceeded in the case on the assumption that the Rent Controller did not believe the statement of bank Manager that the amount was deposited by the appellants on 5.1.1991 in the late hours and therefore, it was shown as deposited in the record on 6.1.1991. The above assumption by the learned Chief Justice was not correct as the Rent Controller commented on the evidence of bank Manager in his order, dated 27.11.1991, as follows:-- "I have perused the record and also heard the learned counsel. It has been alleged by the petitioners that the respondent deposited the rent on 6.1.1991 and thus violated the rent deposit order which stipulated that the respondent had to deposit the rent before 5th of each month. I have also seen the record furnished by the Manager, National Bank of Pakistan and his evidence as well. In his evidence the Manager admitted that: It shows that rent was received by the bank on 5.1.1991 in late hours but entered on 6.1.1991 and thus violated the rent deposit order which stipulated that the respondent had to deposit the rent before the 5th of each month." The above observations of Rent Controller clearly show that he did not disbelieve the statement of bank Manager regarding deposit of amount on 5.1.1991 but he struck off the defence of appellants because he reached the conclusion that the deposit was not in accordance with the rent order which contemplated deposit before 5.1.1991. The learned Chief Justice in the impugned order also observed that the appellants should not have awaited until the last date, for making the deposit of rent. The appellants, under the law, could make the deposit of rent upto 4.1.1991. The fact that the appellants waited till last date to deposit the rent could not be construed as a circumstance to prove their default or contumacy in complying with the order of deposit of rent. If a person under the orders of the Court or by law is required to do or perform an act by a particular day or date, he has the option either to do or perform it before or by the day or date fixed in this behalf. If the last date or day available to him to perform the act, happens to be a closed or public holiday, he is entitled to do or perform the act on the following day. Again the last date fixed for performance of the act will be available to him as a whole and he shall be deemed to have done or performed the act, if he established that he performed it before the date changes. Similarly, if the date fixed for performance of an act happened to be a closed holiday, the whole of the following day will be available for performance of the act. In the case before us, the rent for December 1990 could be deposited under the law upto 4.1.1991. 4th January 1991 being the Friday, a closed public holiday, the appellants could deposit the rent on 5.1.1991. The evidence on record shows that the appellants deposited the rent with the bank on 5.1.1991 though after banking hours namely after 0100 p.m. Since the date changes after 12 p.m., the appellants could deposit the rent before 12 p.m., on 5.1.1991. The fact that the bank recorded the transaction on 6.1.1991 because it was deposited on 5.1.1991 after the banking hours were closed, could not render the deposit nude on 5.1.1991 invalid. We, . accordingly, hold that the deposit of rent by the appellants on 5th of January 1991 though entered in the bank records as on 6th of January 199 L because it was deposited after closing hours of the bank, amounted to due compliance of the order of the Rent Controller and as such his defence could not be struck off for non-compliance of the order of the Court. We, accordingly, allow the above appeal, set aside the orders of the Courts below and remand the case to the Rent Controller for disposal in accordance with the law. There will be no ordei as to costs in the circumstances of the case. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 347 PLJ 1993 SC 347 [Appellate Jurisdiction] Present: saad saood jan and saleem akhtar, JJ AKHTAR HUSSAIN and 3 others-Petitioners versus THE STATE-Respondent Crl. P.LA. Nos. 420-L and 441-L of 1992, decided on 6.4.1993 [On appeal from order of Lahore High Court, dated 14.10.1992, passed in Crl. Misc. Nos. 137-B of 1991 and 1094-B of 1992] Constitution of Pakistan , 1973-- —Art. 89-President's power to re-promulgate Ordinance-Challenge to- Whether President has power under Article 89 to re-promulgate an Ordinance which stood repealed in terms of clause (2) of Article 89-Question of-Held: As there are conflicting views expressed by two High Courts and question involved is of general legal importance and requires authoritative interpretation, leave is granted to consider said question. [P.348JA PLD 1949 Dacca 1, AIR 1987 SC 579 and PLD 1993 Lahore 70 ref. Mr. D.M. Awan, Senior Advocate, Supreme Court, Mr. Ehsanullah Khan Lilla, Advocate, Supreme Court, and S. Inayat Hussain, AOR for Petitioners. Mr. Ejaz Ahmad, Deputy Attorney General for Respondents. Date of hearing: 6.4.1993. order Saleem Akhtar, J.~The question for consideration in these petitions is as , follows:- "Whether the President has power under Article 89 of the Constitution to re-promulgate an Ordinance which stood repealed in terms of clause (2) ,,0f Article 89 of the Constitution" In support of the proposition that no such power exists, reference can be made to Maulvi Tamizuddin Ahmad v. Province of East Bengal (PLD 1949 Dacca 1) and D.C. Wadhwa & others v State of Bihar and others (AIR 1987 S.C. 579). 2. A contrary view has also been expressed in a recent Full Bench judgment of the Lahore High Court in Rehmat Khan v. Federation of Pakistan etc., (PLD 1993 Lah. 70). 3. The High Court of Sindh in Shariat Petitions followed the view expressed in Maulvi Tamizuddin Ahmad's case.The Federation of Pakistan has filed civil appeals No. 80, 81, 83, 85, 87, 89, 91, 92 and 98-K of 1991, which are pending. As there are conflicting views expressed by the two High Courts and the question involved is of general legal importance and further requires authoritative interpretation of the provision of the Constitution, leave is granted to consider the aforesaid question. (MBC) (Approved for reporting) Leave granted

PLJ 1993 SC 348 PLJ 1993 SC 348 [Appellate Jurisdiction] Present: ajmal mian, pir muhammad karam shah and muhammad taqi USMAM, JJ NUR HUSSAIN-Appellant versus THE STATE-Respondent Criminal Appeals Nos. 23(S) of 1991 and 75(S) of 1992, decided on 30.1.1993 (approved for reporting on 4.2.1993). [On appeal from judgment of Federal Shariat Court, dated 26.6.1990, passed in Crl. Appeal No. 209/1 of 1989 linked with S.M. No. 10/1 of 1990] Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979))-- —Arts. 3&4~64 kilograms of heroin-Recovery of-Conviction for-Challenge to—Contention that recovery witnesses were police personnel and that PW2 has given colour of material seized as brown and white and not grey which has created doubt-It is well settled proposition of law that police personnel are as competent witnesses as any one else in absence of any material to indicate that they were biased or prejudiced-There is nothing on record to show that PWs who were police personnel, had any personal motive against driver and cleaner-Chemical Examiner's report proved that packets which were referred, contained heroin—Held: Contention that appellants being driver and cleaner could not have been visited with sentences under Articles 3 and 4 simultaneously, is supported by judgment of this court-Appellants' conviction and sentences under Article 4 set aside. [Pp.351,352&353]A,B,C&D SCMR 895 «/. Mr. Nasir Saeed Shaikh Advocate, Supreme Court, for Appellant (in CrA. No. 23(S)ofl991). Appellant: Not represented (in Cr A.No. 75(S) of 1992). Raja Abdul Ghafoor, Advocate, Supreme Court, for State (in both appeals). Date of hearing: 30.1.1993. judgment Ajmal Mian, J.~By this common judgment we intend to dispose of the above two appeals which have been filed directly as the Federal Shariat Court had enhanced the sentences from 15 years R.I. on each count under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (to be referred hereafter as the said Order) to that of life imprisonment for each count with the direction that the same shall run consecutively. The brief facts are that on 4th September 1988 at 7-p.m. at Check Post Attock Khurd, the checking staff comprising the complainant and other police officials stopped Truck No. 2093-PRC driven by appellant Nur Hussain whereas appellant Muhammad Amin was sitting with him on the front seat. The truck was loaded with large glass sheets. On suspicion the above party interrogated the appellant who disclosed that there were secret chambers behind the driver's seat which contained hereoin. Thereupon planks behind the seat were removed and from where 66 packets of herein were discovered. Upon weighment it was found that 62 packets were of one kilogram each whereas the remaining four packets were of half kilograms. Thus the above 66 packets contained in all 64 kilograms of heroin. It appears that 5 grams of material from each of the packets were taken and sealed into a parcel which were to be sent to the Chemical Examiner for analysis. 33 packets were put in one packet and 33 remaining packets were put in another packet which were also sealed. The key of the truck, its route permit No. 8661 of 1987, registration and insurance papers were also taken into possession. The two appellants were also personally searched. Appellant Nur Hussain carried a photo copy of his identity card, driving licence and a sum of Rs. 400/- which were also taken in possession. A written report of the above incident was sent by Mian Muhammad S.I. SHO for recording FIR which was recorded by ASI Khan Muhammad at 8.35 p.m. on the same day. The prosecution in support of the case examined PW-1 Muhammad Mushtaq, F.C. who stated that on 10.9.1988 he received the sealed parcel from Khan Muhammad Muharrar, ASI and delivered the same intact in the office of the Chemical Examiner on the same day. PW-2 Khan Muhammad stated that he received a written complaint Ex.PA from Mian Muhammad S.I., SHO on which he registered above formal FIR. He also stated that the same day he had been handed over three parcels for safe custody in Malkhana by Mian Muhammad out of which he gave the sample parcel on 10.9.1988 to PW-1 for its transmission to the Chemical Examiner. PW-3 Mian Muhammad, SI and PW-4 Muhammad Farooq, ASI. Chemical Examiner's report was also produced Ex.PE. The appellants in their statement under Section 342 Cr.P.C. admitted the above position except the time of 7-p.m. and the recovery of the heroin on their disclosure. They admitted that they were stopped at the check-post Attock Khurd and that Nur Hussain appellant was driving the truck and Muhammad Amin was sitting by bis side. They denied the recovery of 64 Kilograms of heroin from the secret chambers found at the back of the driver's seat. They also denied preparation of the samples and the report of the Chemical Examiner Ex.PE. They stated that they were standing at Adda Adam Zai when the owner of the truck came and asked them if they could take the truck with glass sheets loaded from Police Glass Factory, Naushera to Haroonabad, as his driver has suddenly fallen ill. The appellants negotiated the wages which were agreed as Rs. 400/-. They further stated that they reached the factory and loaded the truck with glass and left for their destination. They admitted the stoppage of truck at the check post but denied the recovery from the back side of the driver's seat on their pointation or disclosure. It was alleged that the police had concocted a false story. They declined to become witness or to examine any defence witness.The learned Sessions Judge, Attock after hearing the learned counsel for the parties, by his judgment dated 28.9.1989 convicted both the appellants under Articles 3 and 4 of the Order and sentenced them to 15 years R.I. for each count, whipping 30 stripes and a fine of Rs. 10,000/-, in default R.I. for further period of 3 months. It was also ordered that substantive sentence on two counts shall run concurrently and the accused would also be entitled to benefit of Section 382-B Cr.PC. Against the above conviction and sentences appellants filed appeals before the Federal Shariat Court which according to the learned counsel for the appellants were admitted for regular hearing on 28.11.1989. On 14.3.1990 the Federal Shariat Court issued suo-moto notice to the appellants for enhancement of sentence. After hearing the learned counsel for the parties, a Division Bench of the Federal Shariat Court, by its judgment dated 26th June, 1990 enhanced the above sentence in the above terms.Appellant Nur Hussain filed above appeal within time whereas appellant Muhammad Amin sent a jail appeal which was barred by 760 day. Since both the appeas are directed against common judgment, we condone the above delay. In support of the above appeal Mr. Nasir Saeed Shaikh, learned counsel for the appellant has urged that the conviction of the appellants under clause (2) of Article 3 of the Order is not sustainable as the heroin is not mentioned in Article 3. We may observe that this contention was not raised by the appellant before the two Courts below. However, according to the learned counsel for the appellants this is a legal point which can be raised by him at this stage. Even if we were to consider the above submission, it is not tenable in the absence of any material on record to show that heroin is not one of the derivatives from opium or coca leaf, which is lacking in the case in hand. If the appellants would have put any question to the prosecution witnesses on the above aspect and would have brought out some material in their favour, they might have some case to argue. There is no doubt that the prosecution is to prove the case against an accused person beyond reasonable doubt but at the same time if an accused person wants to rely upon a plea which is founded on the mixed question of fact and law, he is supposed to lay foundation before the trial Court. We have also compared Articles 3 and 4 and we have found that there seems to be apparent reason for mentioning heroin, cocaine, raw opium or coca leaf separately in Article 4 as different quantity for the commission of the offence have been provided namely. 10 grams in the case of heroin or cocaine and one kilogram in the case of raw opium or coca leaf. The word "derivatives" has not been employed in Article 4 which has been used in clause (2) ot Article 3. Learned counsel for the appellant has not been able to point out from anv literature that heroin is not one of the derivatives of opium or coca leaf. Then it was urged by Mr. Nasir Saeed Shaikh learned counsel for the appellant that the issuance of enhan:emeni notice on 14.3. L990 was noi warranted by law as the proper stage for issuing of the notice was after hearing the regular appeals. In support of the submission he has relied upon the case of Mughal Naran v Emperor, reported in AIR 1925 Bombay 268 and the case of Parashram Bhika and others v. Emperor, reported in AIR 1933 Bombay 158. There is no doubt that in the above two cases the Bombay High Court while construing Section 439 Cr.PC has held that notice for enhancement under the above section should be issued after disposal of appeal. However, we find that sub-section (2) of Section 439 provides that no order snail be made to the prejudice of the accused unless he had an opportunity of being heard either personally or by a pleader in his own defence. The above provision in the present case has been complied with. If the Federal Shariat Court after admission of the above appeals was of the view that the sentences awarded by the trial Court were not warranted by law it could have issued a notice under clause (2) of Article 203-DD of the Constitution for the enhancement of the sentence. Factually the Federal Shariat Court has not enhanced the sentence under Section 439 Cr.PC but it has exercised its jurisdiction under clause (2) of Article 2C3-DD. In this view of the matter, even otherwise the above judgments are not applicable. It was then urged that the mashirs to the recovery were police personnel and] PW-2 has given the colour of the material seized as brown and white and no! grey and, therefore, it has created doubt. It is a well settled proposition of law that police personnel are as competent witnesses as anyone-else in the absence of any material to indicate that they were biased or prejudiced for some extraneous reason. There is nothing on record to show that the mashirs to the recovery who were the police personnel had any personal motive against the driver and the cleaner. The above alleged contradiction of PW-2 is also (of) no consequence as the Chemical Examiner's report has proved the factum that the packets which were referred contained heroin. It was next urged that in any case the appellants being driver and cleaner could not have been visited with the sentences under Articles 3 and 4 of the Order simultaneously. Reliance has been placed by him on the judgment of this Court in the case of Sahibzada and another v. The State reported in 1991 SCMR 895, wherein the following observations were made:-- "We find that on the evidence brought on record it stands established that the appellants were engaged and intercepted while transporting herob from one destination to the other. There is nothing to show that they were either its owners or had been in possession of it to warrant their conviction and sentence under Article 4 of the Hadd Order. In the circumstances, we find that their conviction under Article 4 was not proper. The Scheme of the two Articles (Articles 3 and 4) of the Hadd Order clearly shows that they serve different situations and different purposes, possession being not necessarily implied in every act of transportation. In the circumstances, we accept the appeal partly and set aside their conviction and sentence under Article 4 of the Hadd Order and hold them not guilty of that charge. However, their conviction and sentence under Article 3 shall remain intact." The above judgment in fact supports the learned counsel for the appellant's above submission. We would in terms of the above judgment set aside the appellants' conviction and sentences under Article 4 of the Order but would maintain the conviction and sentences under Article 3 of the Order. However, we may observe that the learned counsel for the appellant has vehemently urged that either sentence of 7 years be awarded or in any case the original sentence of 15 years be restored instead of maintaining the enhanced sentence of life imprisonment imposed by the Federal Shariat Court. In support of the above submission he relied on the judgment of this Court in the case of Muhammad Rafique v. The State reported in 1990 SCMR 602, in which this Court restored the original sentence of 7 years awarded under Article 4 of the Order by setting aside the enhanced sentence of life imprisonment awarded by the appellate Court below. We may observe firstly, that the above case was under Article 4 and not under Article 3 of the Order and secondly, the question of sentence is a matter of discretion. It cannot be denied that since July 1989 when the above reported case was decided the things have not improved. The trafficking in the narcotic has brought bad name to the country inasmuch as in the European countries and United States Pakistanis are considered as smugglers in narcotic besides factum that the consumption of narcotic has considerably increased among the young generation in Pakistan which is destroying the peace of mind of many families. We are mindful of the factum that the appellants were not the owner of the heroin recovered but they were merely carrier. In our view,unless the carriers of narcotic are awarded deterring punishment, no improvement can be expected. At the same time we may observe that the Government functionary entrusted with the prosecution of the smugglers of narcotics generally fails to catch owners of trfe narcotics who generally manage to remain uncaught. The Government should pay attention to this aspect as it is damaging the image of Pakistan in the community of nations of the world. We would also allow the appellants benefit of Section 382-B Cr.PC. With the above modification the appeals are dismissed. (MBC) Approved for reporting) Orders accordingly

PLJ 1993 SG 353 PLJ 1993 SG 353 [Appellate Jurisdiction] Present: saad saood jan, saiduzzaman siddiqui and fazal elahi khan, JJ ZAHEER DIN-Appellant Versus THE STATE-Respondent Criminal Appeal No. 292 of 1992, accepted on 21.4.1993 (approved for reporting on 4.5.1993) [On appeal from judgment of Lahore High Court, dated 24.10.1992, passed in Criminal Appeal No. 530 of 1986] Acquittal— —Murder—Offence of—Acquittal set aside and appellant convicted under Section 302 PPC-Challenge to-Appraisal of evidence by trial court was neither perverse nor based on any misreading of evidence-Fact that accused/appellant failed, to prove his plea raised in defence, could neither ' reduce burden of prosecution to prove case against him beyond all reasonable doubt nor it could be taken into consideration as a proof in support of prosecution case-Conclusions drawn by High Court were merely another possible view of evidence which was not sufficient for reversing acquittal of appellant into conviction—Held: High Court was not justified in interfering with acquittal judgment of trial court simply because it had taken another view of evidence in case-Appeal accepted. [Pp.355,356&357]A,B&C PLJ 1985 SC 74 rel. Mr, M. Iqbal Bhatti, Advocate, Supreme Court, and Mr. Mahmood A. Qureshi, AOR (absent) for Appellant. Raja Abdul Ghafoor, AOR for State. Date of hearing: 21.4.1993. judgment Saiduzzaman Siddiqui, J.--The above appeal under Article 185 (a) of the Constitution is filed by the appellant to call in question the judgment of the Lahore High Court dated 24.10.1992, whereby the Criminal Acquittal Appeal No. 530 of 1986 preferred by the State against the judgment of Sessions Judge, Khushab, acquitting the appellant in a murder case under Section 302 PPC was allowed and the appellant was convicted under Section 302 PPC sentencing him to life imprisonment and fine of Rs. 15,000/- or in default of payment of fine to suffer R.I. for two years. The appellant was tried for committing murder of Sultan Mahmood son of Qazi Akram on llth April 1984. According to F.I.R. which was lodged in the case by Qazi Akram (PW-7), the father of the deceased, Sultan Mahmood (deceased) on the fateful day had taken the cattle for grazing, out of the village towards Bhuttewali. When he did not return until noon, the complainant started looking for him. On his way the complainant met Shah Muhammad (P\V.8) and Sher Baz (given up PW) outside the village on the road which led towards Nowshera. The two joined the complainant in search for the deceased and after they covered some distance, they were attracted by the cries of Sultan Mahmood in a nearby field. They saw the appellant sitting on the back of the deceased who had fallen down on the ground. The appellant within their sight gave four blows with a stone on the back side of the head of the deceased and one blow on his mouth. The complainant and witnesses rushed to apprehend the appellant but he managed to escape. The motive for the murder was stated to be an incident which occurred a day earlier in which the cattle of the appellant had strayed into the field of complainant, who had admonished the appellant and given him pushes. The trial court found that the prosecution though succeeded in proving the motive, the ocular testimony in the case did not inspire confidence. He found the ocular testimony in conflict with the medical evidence. He also found that the contradictions in the ocular evidence were so substantial that they rendered the prosecution case highly doubtful. The trial court observed that presence of semi digested food in the stomach of deceased made the probable time of death of the deceased between 8/9 a.m. while according to prosecution witnesses the deceased died at about 2.30 p.m. This conflict in the time of death of the deceased arising from the medical evidence and ihe ocular testimony in the case was found by the trial Judge irreconcilable. Similarly, the prosecution case consistently was that the occurrence had taken place in the open field and the dead body of the deceased was lying there till evening when the police arrived at the scene of offence alongwith the complainant. The complainant Qazi Akram (PW.7) Muhammad Rafique Constable (PW.4) and Shah Muhammad (PW.8) had deposed that within 300 to 400 yards around the scene of offence there were no dera/dhok or structure of any kind. Muhammad Jamil ASI (PW.9), the I.O. in the case, however, in his cross examination admitted that in the inquest Report (Ex.PM) he had mentioned that the dead body of the deceased was lying on a cot in front of a residential room which belonged to the father of the accused. Muhammad Jamil (PW.9) further admitted that the place mentioned in the inquest report as "Mauqa" referred to the place where occurrence had taken place and the dead body was found lying. The trial court found that there was no explanation in the prosecution evidence about shifting of the dead body from the field to the place in front of the residential room. The Trial Judge also found the recovery of blood stained earth and blood stained stone from the scene of offence doubtful as the presence of recovery witness Abdul Quddus (PW. 6), who was found to be inimically deposed towards the appellant, at the spot could not be proved satisfactorily. Abdul Quddus (PW. 6) had claimed that he joined the investigation on his own accord and that he reached the spot with the police. Muhammad Rafique Constable (PW. 4) who accompanied the police investigation team to the scene of offence and remained at the spot until he escorted the dead body of the deceased to the hospital, did not mention about the presence of Abdul Quddus. On the contrary he stated that when the police party reached the spot only complainant was accompanying them. The complainant Qazi Akram (PW. 7) in his cross examination categorically stated that nobody joined them on the way when he and the police party were proceeding towards scene of offence after alighting from the Suzuki. He also categorically stated that when he reached with the police party at the spot only Shah Muhammad (PW. 9) and Sher Baz (given up PW) were present and no other person was present there. The trial court also found that in the memo, Ex-PE, under which blood stained earth and blood stained stone were taken into possession by the police from the spot, it was mentioned that some hair of the deceased were found sticking to the blood stained stone but the chemical examiner's report made no mention of the presence of hair on the stone. The above appraisal of the evidence in the case by the- trial court was luiither perverse nor based on any misreading of evidence. The High Court while setting aside the judgment of trial court and convicting the appellant under Section 302 PPC found that the F.I.R. was lodged in the case promptly, investigation commenced without delay, the eye witness account to the point, truthful and disinterested and the plea of appellant remained unsubstantiated. The fact that the accused/appellant failed to prove his plea raised in defence, could neither reduce the burden of the prosecution to prove the case against him beyond all reasonable doubt nor it could be taken into consideration as a proof in support of the prosecution case. The conclusions drawn by the learned Judges of the High Court on the basis of the re-appraisal of the evidence in the case, while convicting the appellant, were merely another possible view of the evidence which was not sufficient for reversing the acquittal of the appellant into conviction. The learned Judges of the High Court did refer to the case of Ghulam Sikandar and another vs. Mamraz Khan and others (PLJ 1985 SC 74) in the impugned judgment but unfortunately they failed to keep in sight the following guiding principles laid down by this Court for deciding an acquittal appeal in a criminal case:-- "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualised from the cited and other case law on the question of setting aside an acquittal by this Court. They are as follows: -- (1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: one initial, that, till found guilty, the accused is innocent; and two, that again after the trial a Court below confirmed the assumption of innocence. (2) The acquitted will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence (c) received such evidence illegally. (3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observance of some higher principle as noted above and for no other reason. (,4) The Court would not interfere with acquittal merely because on re­ appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised hi these cases-, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous." Keeping in view the above principles, we find that the acquittal of the appellant in the above case by the trial court was neither perverse nor based on misreading of evidence. The High Court was, therefore, not justified in interfering with the acquittal judgment of trial court simply because it had taken another view of the evidence in the case. We, accordingly, allow the appeal, set aside the judgment of the High Court I and restore the judgment of trial court. I (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 357 PLJ 1993 SC 357 [Appellate Jurisdiction] Present: ajmal mian, saleem akhtar and wali muhammad khan, JJ MANZOOR-Appellant Versus THE STATE-Respondent Criminal Appeal No. 141 of 1992, decided on 18.4.1993 (approved for reporting on 4.5.1993). [On appeal from judgment dated 29.10.1989, of Lahore High Court, passed in Criminal Appeal No. 234 of 1986.] Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 97, 99, 300 and 302--Murder--Offence of--Conviction for--Challenge to-­ Acquitted co-accused received one incised wound on left side of his head caused by sharp edged weapon and four injuries with blunt means on different parts of his body-Injuries were not explained by prosecution and explanation offered by acquitted accused hi his statement under Section 342 Cr.P.C. had to be given credence-According to Section 97 every person has a right, subject to restriction in Section 99, to defend his own body and body of any other person, therefore, appellant could legally defend person of his nephew, acquitted accused, but since only one blow attributed to him, was inflicted on a vital part of body, he exceeded right of private defence and his act is covered by Exception 2 to Section 300 PPC— Held: It was a free fight and exchange of blows resulted in injuries to deceased and acquitted accused without any premeditation in heat of passions and upon a sudden quarrel, and case of appellant is fully covered by Exception 4 to Section 300 PPC-Conviction altered from Section 302 to Section 304 Part I of P.P.C. [Pp.360&361]A,B&C PLD 1962 SC 502 and 1992 SCMR 1513 rel. Ch. Muhammad Akram, Advocate, Supreme Court, for Appellant. Mr. S. M. Naeem, Advocate, Supreme Court, for State. Date of hearing: 18.4.1993. ' judgment Wall Muhammad Khan, J.~Manzoor convict, appellant herein, through leave of the Court, has called in question the judgment dated 28.10.1989 passed by a learned Single Judge of the Lahore High Court, whereby his Criminal Appeal No. 234/86 against the judgment of the learned Additional Sessions Judge, Jhang dated 4.3.1986 convicting and sentencing him to death plus a fine of Rs. 10,000/- or in default one year R.I. and also to pay Rs. 10,000/- as compensation to the heirs of the deceased or in default to suffer one year R.I. for the murder of Yousaf deceased, was dismissed and by accepting the Murder Reference, confirmed the death sentence imposed upon him. The operative part of the leave granting order is as follows:-- "Learned counsel for the petitioner contends that co-accused Nazir had as many as five injuries on his person including an incised wound which have not been explained by the prosecution and the Courts below have not properly attended his plea of self-defence. It is further submitted that there was an inordinate delay in lodging the FIR and the evidence relied upon by the Courts below was not sufficient to warrant the conviction. After going through the record we feel that the submissions made by the learned counsel require examination. Leave to appeal is accordingly granted to re-appraise the evidence." The prosecution story, as per contents of the F.I.R. Ex.PA, is that on 24.10.1984 Muhammad Younis, nephew of the complainant Khan Muhammd PW-9, was grazing his cattle in his own fields when they moved to the adjacent field in Chak No. 146/JB belonging to the appellant and Nazir Ahmad, acquitted accused, whereupon the appellant and his co-accused caught hold of them. Muhammad Younis ran to his house and brought his brother Yousaf deceased who reprimanded them and released the cattle from their possession. On the same day at Degarwela Manzoor appellant armed with axe and Nazir Ahmed co-accused armed with stick went to the spot where Yousuf was working in his fields. Manzoor raised an alarm that he would teach a lesson to the deceased for the abuses hurled by him and simultaneously delivered a blow at Yousuf deceased hitting him on his head while Nazir Ahmad dealt a stick blow to him on his left eye followed by another blow by the appellant at the deceased which injured him on the back of his head. The occurrence was witnessed, besides the complainant, by Allah Ditta who was grazing his cattle nearby. The appellant and his coaccused Nazir Ahmed fled away from the spot and the complainant took the deceased, then in injured condition, to the dispensary of Chak No. 148 but en route he succumbed to his injuries. The occurrence was reported by Khan Muhammad PW-9 on 25.10.1984 at 7.20 a.m. which was recorded by Zahoor Ahmed, Muharar/Head Constable PW-1 vide F.I.R. Ex.PA. After completion of the usual investigation, the appellant and his co-accused Nazir Ahmed were put on trial before the learned Additional Sessions Judge, Jhang, who, after framing of the charge sheet, recording of such evidence as the prosecution wished to produce before him, the statement of the accused under Section 342 Cr.P.C., found both the accused guilty for the murder of Yousuf deceased and, vide his judgment dated 4.3.1986, convicted them under Section 302/34 PPC and sentenced Manzoor appellant to death and a fine of Rs. 10,000/- or in default one year R.I. plus Rs. 10,000/- as compensation under Section 544-A Cr.P.C. payable to the heirs of the deceased or in default further one year R.I. and sentenced Nazir Ahmed (acquitted accused) to life imprisonment plus a fine of Rs. 5,000/- or in default six months R.I. and also Rs. 5,000/- as compensation payable to the heirs of the deceased under Section 544-A Cr.P.C. or six months further R.I. The benefit of Section 382-B Cr.P.C. was also extended to Nazir Ahmed accused. Both the accused preferred a joint appeal before the High Court against their conviction and sentence which was disposed of through the impugned judgment whereby the appeal of the appellant was dismissed and that of Nazir Ahmed accepted and his conviction and sentence annulled. Hence the instant appeal through leave of the Court. We have heard Ch. Muhammad Akram, Advocate, for the appellant; Mr. S.M. Naeem, Advocate, for the State; and have perused the record of the case. The learned counsel for the appellant argued that there was inordinate delay in the lodging of the F.I.R.; that Nazir Ahmed, acquitted accused, had received five injuries for which he, in his statement under Section 342 Cr.P.C., charged Yousuf deceased and also admitted delivering sola blows on the head of the deceased resulting in his death in the exercise of his right of private defence of person; that the prosecution story so far as it implicated Nazir Ahmed acquitted accused was not accepted and that on the same evidence the appellant could not be legally convicted; and that, in any case, according to the dictum of this Court in case Syed AH Bepari vs. Nibaran Mollah and others (PLD 1962 Supreme Court 502) reiterated in a recent judgment of this Court in Fida Hussain vs. Tlie State (1992 S.C.M.R. 1513) the case of the appellant was covered under Exception 4 to Section 300 PPC and the conviction could only be under Section 304 Part-I PPC. The learned State counsel, on the other hand, controverted the submissions of the learned counsel for the appellant and submitted that the occurrence was not the , result of free-fight or sudden fight but the appellant and his co-accused after arming themselves with axe and stick went to the fields of the complainant to avenge the earlier incident of damage to their crop and attacked the deceased and delivered blow with the wrong side of the axe to the deceased on the most vital part of his body viz.,, his head resulting in his death and that the judgments cited were not applicable to the facts of the present case. We have anxiously considered the arguments of the learned counsel for the parties. According to the site plan Ex. PC the spot where the deceased was done to death is situated in squire No. 238 belonging to Muhammad Nazir. The medico-legal report Ex.DC reveals that Nazir Ahmad co-accused of the appellant received one incised wound on the left side of his head caused by sharp edged weapon and four injuries with blunt means on different parts of his body. These injuries were not explained by the prosecution either in the F.I.R. or in the statements of prosecution witnesses. In the absence of any explanation by the complainant party as to how Nazir Ahmed accused came by his injuries when his presence on the spot is admitted by the prosecution, the explanation offered by ihe acquitted accused in his statement under Section 342 Cr.P.C. had to be given credence and the learned High Court extending him the benefit of doubt acquitted him. The matter, however, does not end here. Since both the accused are alleged to have participated in the incident and Nazir Ahn.cd. acquitted accused, admittedly the sister's son of Manzoor appellant, the question requiring determination would be whether the appellant, in the circumstances, could avail of the benefit of the exercise of right of private defence of the person of Nazir Ahmed, his nephew, or not. According to Section 97 PPC every person has a right, subject to the restriction contained in Section 99 PPC, to defend his own body, and the body of any other person, against any offence affecting human body, therefore, the appellant could legally defend the person of his nephew Nazir Ahmed as well. Only one blow is attributed to him but since it was inflicted on vital part of the body therefore it can safely by held that he exceeded the right of private defence and his act is covered by Exception 2 to Section 300 PPC.No doubt, the prosecution has tried to separate the two incidents of rounding of cattle of the complainant party which had strayed into their fields and the actual occurrence, one in the morning and the other at Degarwela but we are convinced that the two incidents occurred at one and the same time, that is to say, on the catching hold of the cattle Muhammad Younis rushed to his house, informed Muhammad Yousuf deceased, who accompanied him to the' spot for the release of the cattle and on reaching the spot altercation ensued between the parties leading to a free-fight between them and exchange of blows resulting in injuries to the deceased and Nazir Ahmad acquitted accused, without any premeditation and in the heat of passion upon a sudden quarrel. The case of the appellant is, thus, fully covered by Exception 4 to Section 300 PPC as well. In view of our above conclusions, the observations of this Court in cases Syed Ali Bepari vs. Nibaran Mollah (P.L.D. 1962 Supreme Court 502) and Fida Hussain vs. The State (1992 S.C.M.R. 1513) are fully attracted to the facts of the present case and the conviction of the appellant under Section 302 PPC has to be altered to one under Section 304 Part-I PPC. Consequently, we partly allow this appeal, alter the conviction of the appellant from u/s 302 PPC to u/s 304 Part-I PPC and sentence him to ten years R.I. The fine of Rs. 10,000/- already imposed upon him is maintained but the amount of compensation is increased from Rs. 10,000/- to Rs. 20.000/- or in default one year R.I. The benefit of Section 382-B Cr.P.C. is also extended to the appellant. (MBC) (Approved for reporting) Orders accordingly,

PLJ 1993 SC 361 PLJ 1993 SC 361 [Appellate Jurisdiction] Present: Dr. NASIM HASAN SHAH, MUHAMMAD AFZAL LONE AND SAJJAD ALI shah, JJ MUHAMMAD HUSSAIN and another-Appellants versus THE STATE-Respondent Criminal Appeal No. 81 of 1992, partly accepted on 24.4.1993. [On appeal from judgment dated 11.6.1990, of Lahore High Court, passed in M.R. No. 148 of 1986 and Crl. Appeal No. 457 of 1986] (i) Benefit of doubt--. —Murder-Offence of--Conviction for-Challenge to-According to prosecution, both appellants gave knife blows to deceased and during investigation, knife was recovered from appellant No. 2 but not from appellant No. 1-Plea of alibi of appellant No. 1 was rightly rejected by trial court and High Court but prosecution has not produced evidence of recovery of crime weapon from appellant No. l~Held: Since no explanation has been given by I.O, about not making recovery of crime weapon from appellant No. 1, no implicit reliance in totality can be put upon evidence of two eye-witnesses who are related to deceased-Benefit of doubt extended to appellant No. 1 and appeal dismissed in respect of appellant No. 2. [P.366]E,F&G (ii) Chance witness- —Murder-Offence of~Conviction for-Challenge to-PW. 7 has stated that he came from mosque and was going to bakery-There is nothing in crossexamination to show that he had lied on that point—Complainant has mentioned his name in FIR which was lodged within 20 minutes of incident, which excludes possibility of manipulation-Fact that both witnesses are related to deceased, does not reduce their credibility as they have no personal enmity against appellants for false implication-Held: PW. 7 is also reliable and objection that he is a chance witness, is not valid. [Pp.364&365]B (iii) Defence Version-- —Murder-Offence of~Conviction for~Challenge to-Whether defence plea has caused any dent in credibility of prosecution case-Question of—In his statement under Section 342 Cr.P.C., appellant No. 2 has stated that deceased and his two companions forcibly took him towards Tharra of shop, with intention to commit sodomy, gave him beating and forced him to kneeling position and it was at that time that he picked up knife and gave blows to deceased-He has not explained as to from where knife came-I.O denied suggestion that appellant No. 2 had appeared before him at Police Station alongwith knife-Held: There is no truth in plea advanced by appellant No. 2 and it has caused no dent in credibility of prosecution case which stands already proved by overwhelming evidence of incriminating nature. [Pp.365&366]D (iv) Eye-Witness-- —Murder-Offence of-Conviction for-Challenge to-PW. 6, complainant, is eye-witness of incident and he deposed about motive also-High Court disbelieved his evidence on point of motive which is agreed with but remaining evidence of complainant is worthy of reliance-His evidence is not shaken in cross-examination to show that he h'ed about it—He has narrated relevant details of incident in his deposition which are supported by medical evidence so far nature of injuries, weapons and number of assailants are concerned-Held: Fact that complainant had seen incident and was present at spot, is confirmed by his conduct that he filed FIR promptly without any delay and also took dead body to hospital. [P.364]A (v) Recovery- —Murder-Offence of~Conviction for-Challenge to~Objection that complainant should not have been joined in investigation as recovery witness-­ There is force in objection but it does not have serious effect for reason that appellant No. 2, in his statement under Section 342, Cr. P.C., has admitted that he inflicted knife blow to deceased and handed over crime weapon to police- Held: Reliance can be placed on recovery of knife from appellant No. 2 as crime weapon, in respect of which, there is finding of Chemical Examiner that it was stained with human blood-Held further: It can be said that prosecution has been able to prove its case against appellant No. 2 even if motive could not be established. [P.365]C Mr. M, Munir Peracha, Advocate, Supreme Court for Appellants. Raja Abdul Ghafoor, Advocate, Supreme Court for State. Date of hearing: 18.4.1993. judgment Sajjad All Shah, J.~This appeal with leave of the Court is directed against judgment dated 11.6.1990 of the Lahore High Court, Lahore whereby death sentence of both appellants is not confirmed and reduced to life imprisonment and their appeal is partly accepted to that extent. 2. Briefly stated relevant facts giving rise to this appeal are that appellants, who are brothers, ran restaurant in the neighbourhood, where loud music was played and they used to pass objectionable remarks at females passing through the street. Deceased Iqbal took exception to such behaviour of appellants and on that account an altercation took place between them on 28.4.1985 at 2 p.m. hi which threat was extended to Iqbal by appellants that he would be taught a lesson. On that day at 9-30 p.m. while Iqbal was returning home and reached Chatty Masjid, both appellants armed with knives raised Lalkaras and attacked him. Akhtar gave knife blow on his chest and Muhammad Hussain inflicted knife injury on his left flank. Both appellants further repeated knife-blows, which landed on his abdomen. Incident was seen by complainant Abdul Ghafoor, Taj Muhammad, Bashir and other persons, who raised alarm, on which appellants made good their escape. Iqbal died while being taken to the Hospital. Abdul Ghafoor filed F.I.R. at 9.50 p.m. at P.S. Chiniot in District Jhang, which was at 4 furlongs from the spot. A.S.I. Javed Ali after recording F.I.R. took in hand investigation of the case during which arrests were made and knife was recovered at the pointation of Akhtar, which was sealed and sent to the laboratory of Chemical Examiner. It is the case of the prosecution that incident was seen by eye witnesses in the light of bulbs at the spot. 3. In the trial Court prosecution examined 9 witnesses in support of its case. PW-1 Dr. Jamshed Alam deposed that he conducted post-mortem examination of Iqbal deceased and found three stab-wounds near nipple above umblicus, left chest and right abdomen respectively. Cause of death was shock and haemorrhage caused by Injury No. 1. Ocular testimony is furnished by PW-6 complainant Abdul Ghafoor and PW-7 Taj Muhammad. Other witnesses are formal in nature, who had participated in the investigation. Prosecution produced reports of Chemical Examiner and Serologist with positive finding with regard to knife and blood taken from the spot. In their 342 Cr.P.C. statements, appellants denied prosecution allegations levelled against them. Appellant Akhtar took up plea that deceased Iqbal and his two companions attempted to assault him se?Tially and while resisting he gave knife blow to Iqbal. Appellant Muhammad Hussain pleaded alibi. Appellants did not examine any witness in defence. 4. Trial Court-after assessment of evidence brought on the record came to the conclusion that prosecution case stood proved as ocular evidence was corroborated by circumstantial i vidence of recovery of weapon of crime, motive and medical evidence. In the absence of extenuating circumstances, as viewed by the trial Court, both appellants were convicted under Section 302/34 P.P.C and sentenced each to death and fine of Rs. 5000/- or in default R.I. for 2 years. It was further directed that fine, if recovered, was to be paid as compensation to the heirs of deceased. During the hearing of appeal and reference for confirmation of death sentence, High Court was not impressed with evidence on altercation that took place between appellants and deceased on the same day at 2 p.m. before the incident on the ground that complainant did not assert positively in his deposition that he was present at the time of altercation. In such circumstances it was held that reason for attack was shrouded in mystery and on that ground sentence of death of both appellants was reduced to life imprisonment. 5. Leave has been granted by this Court to consider whether High Court was right in examining defence plea before discussion of prosecution case, which gives an impression that conviction is recorded and is result of failure of appellants to prove their defence and to. reappraise the whole evidence in accordance with general principle of administration of justice that it is the duty of prosecution to prove its case beyond doubt regardless of the fact whether accused has succeeded or not in proving defence plea. 6. Record shows that in the evidence of prosecution there is ocular evidence of two witnesses. PW-6 is complainant Abdul Ghafoor, who is eye-witness of the incident and claimed that at the time of incident, which was 9.30 p.m. he was going to the house of his second wife, when he saw deceased Iqbal coming and attack made on him by two appellants with knives. He deposed about the motive also that altercation took place on the same day earlier in point of tune at 2 p.m. High Court disbelieved evidence of this witness on the point of motive on the ground that complainant did not say specifically in his deposition that in his presence altercation took place, hence it was open to infer that source of information was unascertainable. To the above extent, we are hi agreement with the High Court and at the same time we are of the view that remaining evidence of complainant is worthy of reliance. There is no dispute about the fact that complainant is brother of deceased but he has given valid reason that he was going to the house of his second wife, when on the way incident took place, which he saw. On that point he is not shaken in cross-examination to show that he had lied about it. It does not matter, if he did not mention this fact in F.I.R in which material particulars of incident are to be given without giving details of incidental matters. He has narrated relevant details of the incident in his deposition which are supported by medical evidence, so far nature of injuries, weapons and number of assailants are concerned. The fact that this witness had seen the incident and was present at the spot is confirmed by his conduct, that he filed F.I.R promptly without any delay and also took the dead body to the hospital. , 7. Second eye-witness PW-7 Taj Muhammad is also reliable. Objection that he is a chance witness is not valid as he stated that he came from the mosque and was going to the bakery. There is nothing hi his cross-examination to show that he had lied on that point. Complainant has mentioned his name in F.I.R. which was lodged within 20 minutes of the incident, which excludes probability of manipulation. The fact that both witnesses are related to the deceased does not reduce their credibility as they have no personal enmity against appellants for false implication. We do not find anything adverse in the cross-examination of this witness to dissuade us from believing him. 8. Evidence of the eye-witnesses is corroborated by recovery of knife from appellant Akhtar and positive finding of Chemical Examiner that it was found to be stained with human blood. Recovery witnesses are PW-6 Abdul Ghafoor and Muhammad Yasin. Objection is raised that complainant should not have been joined hi the investigation as recovery witness. There is force in the objection and it is correct that Investigation Officer should not have joined complainant hi the investigation as recovery witness and he should have taken for that purpose other persons of independent nature. This objection does not have serious effect for the reason that in this case in 342 Cr.P.C. statement appellant Akhtar has admitted that he inflicted knife blow to the deceased and handed over knife, which is crime weapon, to the police therefore, reliance can be placed on the recovery of knife form appellant Akhtar as crime weapon in respect of which there is finding of Chemical Examiner that it was stained with human blood. In such circumstances, it can be said that prosecution has been able to prove its case against appellant Akhtar even if motive could not be established. 9. Now we proceed to consider defence plea of appellant Akhtar to see as to what extent it has been able to create dent in the credibility of the prosecution case. No burden lies upon appellant Akhtar to disprove prosecution case or to prove his innocence. In his 342 Cr.P.C. statement appellant Akhtar stated that deceased Iqbal and his two companions Khalid and Sajid with the intention of committing sodomy took him forcibly towards Tharra of shop, gave him beating and forced him to kneeling position and it was at that time that he picked up knife and gave blow to Iqbal. He went to the Police Station with knife and produced the same before the Police. It may be mentioned that place of incident as admitted by appellant Akhtar is same as is alleged by the prosecution. He has not given any explanation as to from where knife came. Whether he picked up the knife from the ground or it was already with him concealed some-where. If he had gone to the police station and produced the knife then some entry should have been made in the daily diary of the police station to that effect. When PW-9 A.S.I. Javed Ah, who investigated the case was in the box, a suggestive question was put to him in the cross-examination to the effect whether appellant Akhtar had appeared before him at the police station alongwith knife which was denied by him. The matter ended there and no further effort was made to substantiate this plea. On the other hand, during the interrogation it appears that names of Khalid and Sajid were mentioned but I.O. did not believe the story which was not further proved. For such reasons we hold that there is no truth in the plea advanced by appellant Akhtar and it has caused no dent hi the credibility of the prosecution case which stands already proved by overwhelming evidence of incriminating nature. 10. Case of appellant Muhammad Hussain is slightly on different footing. According to the prosecution, both appellants Muhammad Hussain and Akhtar gave knife blows to Iqbal and during the investigation knife was recovered from Akhtar but not from Muhammad Hussain. PW-9 Javed Ali I.O. has not mentioned in his deposition as to when he had arrested Muhammad Hussain and further no other mention is made by him as to whether crime weapon was recovered from him or not. Secondly, appellant Muhammad Hussain raised plea of alibi and stated in his 342 Cr.P.C. statement that he worked at Faisalabad on the power-looms of Mukhtar Ahmad and resided there. He used to visit Chiniot after 10/15 days. On the following day of the occurrence he was arrested from Faisalabad. Strangely enough I.O. in his deposition before the trial Court refrained from mentioning anything about arrest of this appellant or plea raised by him about alibi and for that reason advisedly no question was put to him on this point in his cross-examination. Complainant denied suggestion in the crossexamination that appellant worked on the power-looms of Sheikh Mukhtar Ahmed but admitted that Shaikh Mukhtar Ahmed had got a case registered against' him under Section 406/420 P.P.C. and further stated voluntarily that he was acquitted in that case. It was argued that on account of enmity with Shaikh Mukhtar appellant Muhammad Hussain was falsely implicated in this case. The argument is untenable for the reason that if complainant had enmity against Shaikh Mukhtar he would have preferred to implicate Shaikh Mukhtar instead of appellant Muhammad Hussain. No other material or evidence of convincing nature was produced in support of that plea. We, therefore, hold that plea of alibi was rightly rejected by the trial Court and the High Court. Without being impressed by falsity of defence plea, we hold that even otherwise prosecution has not produced evidence of recovery of crime weapon from this appellant as has been produced in respect of other appellant Muhammad Akhtar. Since no explanation has been given by I.O. about not making recovery of crime weapon from this appellant, we do not feel inclined to put implicit reliance in totality upon the evidence of two eye witnesses, who are related to the deceased. Giving benefit of doubt, we acquit appellant Muhammad Hussain. 11. For the facts and reasons mentioned above, appeal is dismissed so far appellant Muhammad Akhtar is concerned and appeal is partly allowed so far appellant Muhammad Hussain is concerned and his conviction and sentence are set aside. In the result he may be set at liberty if not wanted in any other case. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1993 SC 367 PLJ 1993 SC 367 [Appellate Jurisdiction] Present: saad saood jan, sajjad ali shah and saleem akhtar, JJ MUHAMMAD ILYAS and another-Appellants Versus THE STATE-Respondent Criminal Appeal No. 201 of 1993, accepted on 9.3.1993 (approved for reporting on 24.4.1993) [On appeal from judgment of Lahore High Court, dated 17.11.1991, passed in M.R. No. 12 of 1989 and Crl. A. No. 744 of 1988] (i) Conflict between medical and ocular evidence— —Double murder-Offence of-Conviction for-Challenge to-According to eye­ witnesses, firing was made by appellants from roof of house at two deceased persons who became injured and died-It can be said with certainty that possibility of scorching, blackening and charring would be excluded, which normally appears in case of firing from a close range-According to Doctor, there was scorching in fire-arm injuries of both deceased persons and injuries were not oblique and appeared to have been caused straight on front while standing-Doctor categorically denied that injuries of both deceased could be caused from roof at height of 12 to 15 feet-Held: Medical evidence has falsified claim of eye-witnesses that firing was made from roof of house at victims in street-Held further: Prosecution has failed to prove case against appellants beyond doubt-Benefit of doubt extended. [P.373JF&G (ii) Criminal Trial-- —Double murder—Offence of—Conviction for—Challenge to—Third eye-witness Muhammad Aslam, named in FIR, was not examined in trial court by prosecution as unnecessary-It is surprising that complainant informed in writing that this witness should not be examined as he is unnecessary-Held: This clearly shows that inference is unavoidable that had Aslam been examined, he would not have supported prosecution case—Held further: No reliance can be placed on complainant's son, PW7 who states that he was present and available when police visited spot, but his statement under Section ' 161 Cr.P.C. was recorded after about more than two weeks of incident. [Pp.372&373]E (iii) Delay- —Double murder-Offence of-Conviction for-Challenge to-There is sufficient delay in filing of F.I.R.-Incident took place at 3.30 P.M. and report was registered at 5.30 P.M. when distance between spot and police station is stated to be 4 miles—Complainant claims to have gone straight to police station on a bicycle and reached there within half an hour-His F.I.R. was immediately recorded and after that police went to spot in a jeep and motor car-Held: Delay of two hours for police to reach spot is not satisfactorily explained. [P.371JB (iv) Investigation— —Double murder-Offence of-Conviction for-Challenge to-Even if it is assumed that police reached spot at 6 p.m. as claimed, then why spot inspection could not be carried out and crime empties recovered on first day- Explanation of Investigating ,bfficer that after reaching spot at 6 P.M. he prepared inquest reports and injury statements and by that time it became so dark that he could not inspect spot, is not satisfactory—Held: If I.O. intended to complete legal formalities, he could have done so with speed and expedition without raising excuse of darkness—.Held further: It is intriguing to note that when I.O. was unable to carry on investigation at spot due to darkness, what was he doing there till 11.30 of night. [P.371JC&D (v) Related witness— —Double murder—Offence of—Conviction for—Challenge to—Both eye­witnesses examined in trial court, are related to deceased persons-Relations between complainant and appellants were not congenial in least and there was background showing enmity and unpleasantness—Complainant denied suggestion that he dishonestly did not disclose his enmity against appellant No. 1 in first information report-Held: In such background, evidence of these two witnesses is to be subjected to deep scrutiny with extra care and caution. [Pp.370&371]A Mr. Aftab Fam//c/j,_Senior Advocate, Supreme Court, and Mr. Tanvir Ahmad AOR (absent) for Appellants. Raja Abdul Ghafoor, AA.G. Punjab , for State. Date of hearing: 9.3.1993. judgment Sajjad Ali Shah, J.-This appeal with leave of the Court is directed against judgment dated 17.11.1991 of Lahore High Court, Lahore, whereby conviction of appellants under Section 302/34 P.P.C. and their sentence of death is upheld, reference for confirmation of death sentence accepted and Revision of complainant against acquittal of co-accused Muhammad Abbas is dismissed. 2. Briefly stated the relevant facts are that on 22.8.1985 at '2.30 p.m. Nasir Mahmood s/o complainant Faiz Ahmad gave beating to Muhammad Ali nephew of appellant Muhammad Iqbal, who were separated on intervention of villagers. On the complaint of Muhammad Ali, at about 3-30 p.m. both appellants armed with 12 bore guns and acquitted co-accused Muhammad Abbas armed with revolver came to the spot and from there both appellants went on the roof of the house of Muhammad Kassim, while Muhammad Abbas remained in the street. Abbas fired in the air, which brought out Hidayatullah and Muhammad Akram from the house of complainant. Iqbal fired at Akram and Ilyas fired at Hidayatullah from the roof and both of them became injured and died at the spot. Incident was seen by three eye witnesses namely complainant Faiz Ahmad, Abdullah and Muhammad Aslam. Complainant went to the police station Sangla Hill and lodged F.I.R. on the same day at 5-30 p.m. Distance between police station and the spot is about four miles. SHO Inayat Ali Shah after recording report came to the place of occurrence and commenced investigation. He noticed two dead bodies, prepared injury statements and inquest reports and sent them to the hospital for post-mortem examination. Due to darkness, he inspected the spot on the following day and recovered four crime empties from the roof of the house of Muhammad Kassim. He received two bottles from the hospital containing pellets and sent empties and pellets to the Ballistic Expert, 3, Appellant iqbal and acquitted co-accused Abbas were arrested on 11.9.1985 by S.I. Abdul Ghafoor. Appellant Ilyas was arrested on 18.6.1986 by S.I. Muhammad Ashraf. Guns recovered from both appellants were sent to the Ballistic Expert, while revolver of Abbas was not sent. Report of Ballistic Expert is positive in respect of gun of appellant Iqbal to the extent that one crime empty matched with it. In the trial Court, prosecution examined 17 witnesses in support of its case. Two eye-witnesses PW-1 complainant Faiz Ahmad and PW-14 Muhammad Abdullah were examined. Third eye-witness Aslam was given up as unnecessary. PW-7 Nasir Mahmood is examined on motive. He described in detail how and why he had administered beating to Muhammad Ali on whose complaint, attack was made resulting into murder of two persons. PW-1 is Dr. Muhammad Rafiq Choudhry who conducted post-mortem examination of two dead bodies. According to him, deceased Muhammad Akram had sustained 9 injuries out of which eight were caused by fire-arm and he recovered one pellet from the body. Deceased Hidayatullah had sustained 4 injuries caused by fire arm. He took out two pellets from the body. Both died due to shock and haemorrhage owing to fire-arm injuries. Other witnesses are of formal nature and include police officials, who took part in the investigation. In their statements under Section 342 Cr.P.C. appellants denied prosecution allegation and proclaimed innocence and false implication due to enmity. They declined to give evidence on oath. 4. After evaluation of evidence trial Court discarded report of Ballistic Expert on the ground of missing link in the evidence of handling of parcels by persons between points of recovery and delivery at the laboratory. Trial Court also did not use evidence on the factum of abscondence of appellant Ilyas for the purpose of corroboration but was satisfied that direct evidence was corroborated by.medical evidence and seizure of blood stained earth and empties. Trial Court recorded conviction of both appellants and sentenced them to death and fine of Rs. 25,000/- on each count and in default of fine to suffer R.I for 2 years. Trial Court acquitted co-accused Muhammad Abbas by giving him benefit of doubt. During hearing of appeal, High Court rejected contentions raised on behalf of appellants including the one that there is conflict between ocular evidence and medical evidence and finally dismissed appeal upholding conviction and sentence • of death awarded to the appellants. 5. Leave is granted by this Court to examine the evidence from point of view whether there is corroboration available to support evidence of two eye witnesses who are related to the deceased particularly when there is conflict between ocular and medical evidences on the question of distance of.firing. According to the doctor, scorching was found on entry wounds of deceased persons, while on the other hand eye-witnesses positively asserted that firing was made from the roof of the house. 6. We have heard at length Mr. Aftab Farrukh Sr. ASC for appellants and Raja Abdul Ghafoor, A.A.G Punjab. We feel obliged to appraise evidence with greater care and caution for the reason that on the basis of same evidence coaccused Abbas has been given benefit of doubt and acquitted. Evidence of the same two eye-witnesses produced in the trial Court was not considered as sufficient and attempt was made to look for corroboration, which was not available as allegation against that co-accused was that he remained in the street and fired in the air, which attracted and brought out two deceased persons, who were fired upon by appellants from the roof of the house. Prosecution alleged that acquitted co-accused fired at witnesses but they were not hit and in such circumstances incriminating corroborative evidence to connect (him) was not available resulting in extension of doubt and acquittal. 7. Admittedly both eye-witnesses examined in the trial Court are related to the deceased persons. PW-11 complainant Faiz Ahmad has deposed that deceased Hidayatullah and the other eye-witness PW-14 Abdullah, brothers interse are sons of his paternal aunt. Deceased Akram was son of Abdullah, who lived away at a distance of 35/40 Karams from the spot. Deceased persons and Abdullah had come to the house of complainant to inform him about quarrel between his sonNasir and Muhammad Ali. Relations between complainant and appellants were not congenial in the least and there was back-ground showing enmity and unpleasantness. Complainant admitted in his cross-examination that he was a prosecution witness against appellant Ilyas, who was accused in an abduction case in which he was finally acquitted. Complainant further stated that he did not remember that he was prosecution witness in a hurt-case registered against Ilyas at the instance of Hidayatullah. He however remembered that there were two versions of the incident, one filed at the instance of Ilyas against Hidayatullah and the other against Ilyas and others at the instance .of Hidayatullah. Complainant also remembered that he was accused in the earlier case and voluntarily stated that both the cases were compromised. Complainant further denied the suggestion that he dishonestly did not disclose his enmity against Ilyas in the -first information report. PW-14 Muhammad Abdullah denied in his cross-examination that he appeared as a witness against Ilyas in a case under Section 307 P.P.C. He claimed to have appeared in defence of Ilyas in the Military Court in the case with charge of beating a Polling Officer. In such back-ground the evidence of these two eye witnesses is to be subjected to deep scrutiny with extra care and caution. 8. Now there are very serious infirmities and defects attached with direct evidence, which are hard to explain and cast considerable doubt on the claim of these witnesses to have seen the incident. Firstly there is sufficient delay in filing of F.I.R. Incident took place at 3-30 p.m. and report was registered at 5-30 p.m. when distance between spot and Police Station is stated to be 4 miles. Complainant claims to have gone straight to the Police Station on a bicycle and reached there within half on hour. His F.I.R. was immediately recorded and after that police went to the spot in a jeep and motor car while complainant went on cycle. He further stated that police might have reached the spot within half an hour. In such circumstances delay of two hours for police to reach the spot is not satisfactorily explained. 9. Secondly even if it is assumed that police reached the spot at 6. p.m. as claimed, then why spot inspection could not be carried out and crime empties recovered on the-first day. Explanation of I.O PW-15 Syed Inayat Ali Shah is not satisfactory that after reaching the spot at 6 p.m. he prepared injury statements

and inquest reports and by that time it became so dark that he could not inspect the spot and carry investigation further. Incident took place on 22.8.1985 and on that day sun had set at 6.41 p.m. according to the calendar hence there was sufficient light and time to cover injury statements, inquest reports and spotinspection. Electric light or in its absence, lanterns could have been used. If I.O. intended to complete these legal formalities, he could have done so with speed and expedition without raising excuse of darkness. I.O. stated in crossexamination that due to darkness he did not collect blood stained earth on the same day but he was able to prepare injury statements and inquest reports. 10. Thirdly prosecution case is and it is so stated in F.I.R. that both appellants went on the roof of house of Kassim and fired from there at Hidayatullah and Akram but I.O. did not see the roof after arrival at the spot and remained there till 11-30 at night and by that time Kassim and Mst Barkat Bibi also did not appear before him. It is the case of the prosecution that eye witnesses did not see appellants going on the roof of the house of Kassim but Mst Barkat Bibi did. It is intriguing to note that when I.O. was unable to carry on investigation at the spot due to darkness, what was he doing there till 11-30 of the night. I.O. has also stated that on the following day he inspected the said roof and recovered 4 crime empties. 11. Fourthly direct evidence is discrepant inasmuch as F.I.R. mentions the fact that acquitted accused Abbas remained in the street and fired in the ait on which two deceased persons came oat from the house and were fired upon by appellants from the roof-top, then all assailants went away firing in the air. In the evidence in the Court, complainant did not £ay anything about seeing acquitted co-accused firing at the spot. PW-14 Muhammad Abdullah did say in his evidence that Abbas acquitted co-accused fired his revolver but nobody was hurt. Having said so in his examination-in-chief, this witness in his cross-examination reiterated this fact with emphasis and improvement that Abbas fired at them but they escaped unhurt. He also stated that before the incident Abbas fired in the air. Prosecution case in F.I.R. is that on hearing report of firing, two deceased went out first followed by eye-witnesses, which shows that in actuality none saw Abbas firing in the air, then how such positive assertion is made that Abbas fired in the air in the street before, during and even after the incident, in that case why no crime-empty was recovered from the street. This aspect is to be considered in the light of the fact that Abbas has been acquitted by the trial Court because on this point evidence of eye witnesses was not relied upon in totality without independent corroboration and their credibility in that respect was suspect. 12. Fifthly Muhammad Aslam third eye-witness named in F.I.R. was not examined in the trial Court by prosecution as unnecessary on the basis of application moved by the complainant as is recorded by the trial Court on 13-10- 1987 and mentioned at page 50 of the High Court Paper book. It is surprising that complainant informed in writing that eye-witness Aslam should not be examined as he is unnecessary. This clearly shows that inference is unavoidable that had Aslam been examined, he would not have supported the prosecution case. As per prosecution case appellants were motivated to take revenge because Nasir son of complainant gave beating to Muhammad Ali nephew of appellant Muhammad Iqbal and in that case normal expectation would be that victim would be Nasir or his father complainant, who could have been attacked in their own house. In his evidence complainant has admitted that none of the assailants had come to his house, which had no outer door on the West. In such circumstances assailants could have walked into the house of complainant to attack instead of going on the roof of house of Kassim to fire from there at victims, who had come out in the street. Complainant has admitted in his cross-examination that when he was out in the street watching incident, he was visible to assailants but none fired at him. PW-7 Nasir Mahmood son of complainant has deposed about his beating Muhammad Ali on the same day before the incident and stated that his 161 Cr.P.C. statement was recorded on 9.9.1985 after about more than two weeks of incident, which took place on 22,8.1985. It appears from his evidence that he was present and available when police visited the spot but he did not disclose story of motive to I.O. He has admitted that he narrated to his father about beating of Muhammad Ali before the incident. In such circumstances no reliance can be placed on the evidence of this witness. It may be mentioned here that PW-6 Rashid Ahmad is witness of recovery of blood stained earth, empties, crime weapons and has admitted in his evidence that he is brother of complainant. Finding of Ballistic Expert is that only one empty matched with gun P-ll of appellant Iqbal but since evidence of recoveries is defective, it has been rightly discarded by Courts below for valid reasons. 13. Sixthly so far conflict between ocular and medical evidence is concerned, it may be stated that according to eye witnesses firing was made by appellants from the roof of the house at two deceased persons in the street, who became injured and died. This certainly would involve question of height and distance as victims were in the street. Without going into minute details of distance, it can be said with certainty that possibility of scorching, blackening and charring would be excluded, which normally appears in the case of firing from close-range. PW-1 Dr. Muhammad Rafiq has deposed that there was scorching in the fire-arm injuries of both deceased persons. He further stated thai if injury is caused by a shot fired from roof at the height of seven feet, then it could produce oblique injury. On both deceased persons, injuries of fire-arms were not oblique and appeared to have been caused straight on the front, while standing. Doctor has categorically denied that injuries of both deceased could be caused from the roof at the height of 12 to 15 feet. In- this context prosecution examined PW-12 Syed Rab Nawaz Shah Draftsman who prepared site plans Ex.PM and PM/1 and has shown the distance between roof from where firing was made and places in the street, where dead bodies were found to be about 18 feet. Medical evidence has falsified claim of eye witnesses that firing was made from the roof of the house at victims in the street. 14. In the final analysis of evidence, we are of considered view that in this,/ case prosecution has failed to prove the case against appellants beyond doubt. Ocular evidence of two eye-witnesses does not inspire confidence and it is doubtful whether they had seen the incident. No doubt unfortunate incident has taken place in which two persons have lost their lives but not in the manner asserted by the prosecution. On the basis of evidence of these eye-witnesses, co- accused Abbas is acquitted by trial Court and finding is maintained by the High Court. There is again no corroborative evidence to supplement ocular evidence. Prosecution can seek support from motive, medical (evidence) and recoveries, but each piece of this evidence is defective and failing in intrinsic value, hence not fit for reliance to corroborate ocular version, which is itself defective. It is settled principle of law that one piece of tainted evidence can not corroborate another piece of tainted evidence. We therefore hold that it is fit case in which benefit of doubt can be given to the appellants. Conviction and sentence of appellants is set aside and appeal is allowed. They may be set at liberty if not wanted in any other case. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 374 PLJ 1993 SC 374 [Appellate Jurisdiction] Present: SAJJAD ALI SHAH AND SALEEM AKHTAR, JJ KHANAN and others-Appellants versus FATEH SHER, DECEASED, THROUGH HIS LEGAL HEIRS-Respondent Civil Appeal No. 1228 of 1990, dismissed on 16.5.1993 [On appeal from judgment of Lahore High Court, dated 29.7.1990, passed in RSA No. 157 of 1959] West Pakistan Land Reforms Regulation, 1959 (M.L.R. No. 64)-- -—Para. 22-Shamilat land-Possession of-Suit for-Whether decree for possession or ejectment of respondents could be passed-Question of-In view of finding of courts, appellants are Aala-Malkan without being exclusive owners, land is Shamilat Deh and there being no evidence that respondents had broken land with permission of Aala-Malkan, appellants would not be entitled to decree for possession-Appellants have based their claim on their Aala-Milkiyat and it has been abolished under para 22 of MLR No. 64 which has over-riding effect—Held: With coming into force of MLR No. 64, any decree passed in favour of appellants on basis of their Aala-Milkiyat, cannot be executed and will be rendered absolutely ineffective—Held further: No decree either for possession or ejectment of respondents, can be passed in favour of appellants-Appeal dismissed. [Pp.378&379]A,B&C Syed Muhammad Zainul Abidin, Advocate, Supreme Court, and Mr. Muhammad Aslam Chaudhry, AOR for Appellants. Malik Allah Wasaya, Advocate, Supreme Court, and Mr. Tanvir Ahmad, AOR for Respondents. Date of hearing: 9.12.1992. judgment Saleem Akhtar, J.-This direct appeal arises from the judgment passed by a learned Judge of the High Court in RSA No. 157 of 1959 whereby the suit filed by the appellants praying for possession of the shamlat land was dismissed. 2. The appellants filed a suit for possession of Shamlat land measuring 321 kanals situated in village Dogar Aulakh, Tehsil Bhakkar, pleading that they being the Aala-Malkan in the village were the owners of the said Shamlat land and the respondents/defendants had taken possession of the land in dispute forcibly without any right or title. They claimed possession as Aala-Malkan in the village. The respondents denied their claim and contested the suit. They denied that the appellants were Aala-Malkan of the Mauza and alternatively if they were so, then they had no proprietary rights in the land in dispute as they only could claim Haq Malkana. The possession of the appellants was denied and it was claimed that the respondents were co-sharers in the Shamlat land and since their possession is very old, they could not be ejected. The learned trial Court held that the appellants were Aala-Malkan but were not the exclusive owners. The respondents' possession was very old. The claim for possession was dismissed as the appellants not being in exclusive possession without partition of land such relief could not be granted. In the first appeal filed by the appellants the judgment and decree passed by the learned trial Court was set aside and relief of ejectment was granted. It was observed as follows:- "So far as the case of the plaintiffs is concerned, I find that it has been found that the plaintiffs were Aala-Malkan and consequently co-sharers in the Shamlat deh. Similarly, I find that the defendants were Adna-malkan in the village, but there was no evidence that they had brought the land in dispute under cultivation with the consent of the Aala-Malkan and therefore according to the Shart Wajib-ul-arz, pertaining the this village, the defendants were not the Adna-malkan of the land in dispute. Had the defendants taken the possession of the land in dispute and had they brought it under cultivation with the consent of Aala-Malkan, they would have acquired the rights of Adna-malkan in the land in dispute as well, but though they are Adna-malkan in the village, there is no evidence that they entered this land which is now in dispute and brought it under cultivation with the consent of the Aala-Malkan and as such their position so far this land is concerned is nothing better than an occupancy tenant. Anyhow, since the defendants are also Adna-malkan in the village they might have some rights over the Shamlat land, such as the rights of grazing their cattle etc. Under these circumstances, the plaintiffs who are Aala-Malkan were certainly not entitled to take the possession of the land in dispute from the defendants without claiming the partition of the land in which the rights of Adna-malkan over the Shamlat land could be ascertained, but it does not mean that the defendants, who were only Adna-malkan in the village, had a right to bring Shamlat land under cultivation without the consent of the Ala-Malkan and could retain its possession. The defendants cannot even retain the possession of the land in dispute as they have brought it under cultivation without the consent of the Ala-Malkan of the land in dispute. It is thus clear that the finding of the lower court that neither the plaintiffs who were Ala-Malkan could be delivered the possession of the land in dispute nor the defendants could retain its possession was perfectly justified, but the finding of the lower court that the defendants could not even be ejected from the Shamlat land as the plaintiffs had not claimed ejectment of the defendants in the suit couid not be justified because the claim for possession is a wider claim and if the plaintiffs are entitled to a lesser claim, then that claim can be decreed when the plaintiffs are found entitled to it. Certainly, the defendants are not entitled to retain the possession of the land in dispute and they are liable to ejectment and the plaintiffs could be awarded a decree for the ejectment of the defendants, though they could not be awarded a decree for possession. In this connection PLD 1951 Lahore 92 may be seen wherein it was held that though the plaintiffs were not entitled to a decree for possession in their capacity as Ala-maliks still a decree for ejectment could be granted against the defendants who were entitled to retain the possession of the Shamlat land (according) to Short Wajib-ul-arz." In second appeal, by the impugned judgment, the learned Single Judge held that the respondents were in possession of the land in dispute since long and from the fact that being Adna Malkan in the village they are cultivating the land, implied consent of the appellants can be inferred and therefore the respondents could neither be ejected nor dispossessed. The appeal was allowed and appellants' suit was dismissed. 3. The findings of the trial and first appellate Courts are that the appellants/plaintiffs are the Aala-Malkan and co-sharers in the Shamlat land and have never been in actual possession of the disputed land; the possession of the respondents/defendants, who are Adna Malkan, on the disputed land was very old. The respondents' possession on the disputed land was not with the consent of the appellants. The learned Judge of the High Court observed that the possession of the respondents was with the implied consent of the appellants. None of the Courts have given a clear finding that on what terms and in what manner the respondents occupied and started breaking the land, 4. The learned counsel for the appellants contended that the respondents being in occupation of the Shamlat land without the permission of the appellants cannot claim any right in the Shamlat land. Reliance was placed on Kauro vs. Mitha represented by Sulla and others (RSA No. 1369 of 1943)-pronounced by Mr. Justice Mehr Chand Mahajan of Lahore High Court on 20.4.1945. In this case the appellants were Adna Malkan who had "dug wells in the Shamlat land without the permission from the Aala-Maliks and appropriated portions of Shamlat waste for their exclusive use." The respondents being the Aala-Malkan filed suit for possession., The appellants had taken possession during the years 1902 and 1929 when Sind Sagar Doab Act, 1903 was in force. It was observed as follows:- "The defendants reclaimed the Shamilat waste during the period 1902-1929, that is the period of the currency of the Act and during which no rights could be acquired by an act of reclamation. That being so, they only became tenants at will under the proprietors of this land and they have been paying the proprietary dues. By mere possession, they cannot acquire any rights under the wajib-ul-arz or otherwise. Even after the repeal of the Act, they have not obtained the permission of the descendants of Sulla, nor did they pay any nazrana. Therefore, they have not acquired any adna milkiyat in these lands under the terms of the wajib-ul-arz. They are, therefore, neither adna maliks nor have they any other right in which they can remain in possession of these lands, their procedure was to approach the aala maliks, offer them nazrana and take their permission after the repeal of the Act and if the aala maliks agreed to this course they could be allowed to remain in possession. But they have not chosen that course and did not even take up that position in their pleadings in these cases. The result therefore, is that the plaintiffs, whether they are exclusive owners of the shamilat or not, are certainly entitled qua these persons, who could only appropriate the shamilat waste with their permission, to turn them out of the lands that they have without any right occupied." 5. The Adna Malkan were ejected mainly on the ground that they had not obtained the permission of Aala-Malkan. Reference has been made to another judgment by the same learned Judge of the Lahore High Court dated 20.4.1946 passed in RSA No. 1321/1943, Ghulam Hussain vs. Mitha deceased represented by his sons Sulla and others, copy of which has been included in part II of the paper book. It relates to the shamilat land of the same area as in the present appeal. It was observed that in shamilat land the adna Malik has a permissive right. The judgment has traced the history from the year 1860 but the dispute related to rights of Aala-Malkan and Aala Khud Adna Malkan. It was observed that the determination of rights depended on the determination of the effect of proved documents and it was held:- "It is sufficient to hold that the plaintiffs are not the exclusive owners of the shamilat and that the defendants are not tenants at will under them and that the plaintiffs cannot exercise rights of absolute owners in the matter of dispossessing the defendants from these lands. It may be that the plaintiffs as well as the defendants iuve limited rights of ownership in the shamilat deh and that neither of them has a right to have it partitioned, or it may be that both these sets can join in partitioning the shamilat waste in respective shares, those shares varying with the number of wells in the possession of each set. When the question of partition arises, the matter will have to be determined as to how the rights of other Adna Maliks in this area have to be safeguarded as well as the rights of non-proprietors which they obviously enjoy in the matter of grazing." This judgment was upheld in appeal which is reported as Mitha vs. Ghulam Hussain (PLD 1949 Lah. 86). This judgment is of no relevance except that it gives the history of the land settlement from the year 1860. Reference has been made to Ghulam Haider vs. Haider (PLD 1951 Lah. 92) in which Monir C.J. (as he then was) has traced the entire history of Shamlat land and tenure in village Duggar Awan in Bhakkar Tehsil, District Mianwali with reference to Aala Maliks and Adna Maliks, It was held that Shamlat land in this village did not belong to the Aala Maliks and therefore their claim for exclusive ownership was not accepted. However, a decree for ejectment instead of possession was granted. 6. We have noted a judgment of this Court in CPLA No. 823-L and 824-L of 1990 (Haji Ladhoo and others vs. Member Board of Revenue, Punjab, Lahore ). The question for consideration was whether Sullah and other petitioners in pursuance of para 6(d) of the notification issued under sub-para (5) of para 4 of the West Pakistan Land Reforms Regulation were entitled to be considered as full proprietors of the entire shamlat land. The entire hierarchy of Revenue Authorities maintained that as in column 5 otjamabandi the words "Shamlat Deh" figured, such property belonged to the entire proprietary body of the village and therefore full proprietary rights cannot be conferred on the Aala Malkan to the exclusion of Adna Malkan, The petitioners challenged the order of the Member Board of Revenue in a Constitution Petition which was dismissed by the High Court. The petition for leave to appeal filed by the petitioners was dismissed with the following observations:- "The proprietary body hi the village consists of three categories, namely, Aala-Maliks, Aala Khud Adna Maliks and Adna Maliks. As Shamlat belonged to the whole village and would be vesting in the entire proprietary body comprising the aforesaid three categories, we agree with the High Court that mention of "Shamlat Deh" in column No.5 of the Jamabandi is synonymous with the entire proprietary body of the village which alongwith Aala Maliks also includes Aala Khud Adna Maliks and Adna Maliks." 7. In view of the finding of the Courts that the appellants are Aala-Malkan without being exclusive owners, the land is Shamlat Deh and there being no finding or evidence that the respondents had broken the land with the permission of the Aala Malkan, the appellants would not be entitled to a decree for possession. They are however entitled to a decree for ejectment. In the facts and circumstances of the case and as the respondents themselves had not pleaded that the appellants had accorded implied permission, no relief can be granted on that basis,. 8. The learned counsel for the respondents contended that even if a decree for ejectment is passed in view of West Pakistan Law Reforms Regulation, 1959 (M.L.R. No. 64) the Aala Milkiyat right of the appellants has been abolished under paragraph 22 thereof, and therefore the decree has become inexecutable. Paragraph 22 reads as follows:- "Para. 22 Intermediary interests.—Aala-milkiat, and similar other interests subsisting immediately before the commencement of this Regulation, shall, on such commencement, stand abolished, and no compensation shall be claimed by, or paid to, any person affected by the abolition." 9. The appellants have based then- claim on their "Aala Milkiyat" right and as it has been abolished, their claim for possession cannot sustain. Para 3 of the Regulation makes the provisions of the Regulation and any rule or Order made under it effective notwithstanding anything contrary to any law or any order or decree of the Court. The Regulation overrides all orders or decrees of the Court or rules of custom or usage which are contrary to its provisions. The learned counsel has referred to an unreported judgment in Execution Second Appeal No. 712/1967 (Sullah & others vs. Ghulam Hussain) in which similar question arose and Muhammad Gul J (as he then was) referring to paragraphs 3 and 22 of the' Regulation observed as follows:- "The provisions of this paragraph are peremptory and all embracing. On its plain reading it is equally applicable to decrees of Court notwithstanding the fact that such decrees have attained finality. It has common ground between the parties in the lower Courts that the decrees were put into execution after coming into force of the Martial Law Regulation, and having regard to the nature of the right on the basis of which the decrees were passed in favour of the appellants, I have no doubt in my mind that these decrees were rendered absolutely ineffective under paragraph 22 read with paragraph 3 of the Regulation. Indeed, the two paragraphs are unqualified in their application and it is difficult to imagine how the appellants' case can be excepted from the combined operation of the two paragraphs." . 10. With the coming into force of Martial Law Regulation No. 64 any decree passed in favour of the appellants on the basis of their Aala Milkiyat cannot be executed and will be rendered absolutely ineffective. In these circumstances, no decree either for possession or ejectment of the respondents can be passed in favour of the appellants. The appeal is dismissed. (MBC) (Approved for reporting) Appeal dismissed.

PLJ 1993 SC 379 PLJ 1993 SC 379 Present: SHAFiUR rahman, ajmal mian, saiduzzaman siddiqui, pir muhammad karam shah and maulana muhammad taqi usmani, JJ STATE, THROUGH ADVOCATE GENERAL NWFP, PESHAWAR, and another—Appellants versus SAJJAD HUSSAIN and 3 others-Respondents Criminal Appeal Nos. 22 (S) of 1989,17(S), 18(S), 19(S) and 26(S) of 1990, decided on 17.2.1993 (approved for reporting on 11.5.1993). [On appeal from judgments of Federal Shariat Court, dated 8.2.1989, 5.7.1989 and 16.11.1989, passed in CrA. No. 46-P of 1988, Jail CrA. No.15/1 of 1989, Cr. A. No. 55-P of 1988, CrA. No. 35-P of 1988 and Cr. A. No. 38-P of 1989] Jurisdiction-- —Offence under Prohibition (Enforcement of Hadd) Order, 1979—Offence committed in Federally Administered Tribal Areas--Whether Federal Shariat Court had jurisdiction-Question of-P.O. 4 of 1979 is not an Act of Majlish-e- Shoora, but is a Constitutional Order made by President and CMLA and is expressly said to extend to whole of Pakistan within which is included Federally Administered Tribal Areas—It was taken to be so extended to those Areas by P.O. 5 of 1984-Provisions of Article 270-A of Constitution protect these sub-constitutional provisions-Jurisdiction of Federal Shariat Court is traceable and confined to chapter 3-A of Constitution and relevant Article is Article 203-A which reads "provisions of this Chapter shall have effect notwithstanding anything contained in Constitution"-After revival of Constitution, P.O.5 of 1984 cannot compete with or stand against Article 203- A and Article 247(7) of Constitution is inapplicable to Federal Shariat Court-­ Held: Federal Shariat Court has rightly decided preliminary legal point with regard to its jurisdiction over FA.T A. [Pp.383,384&385]A,B,C,D&E Mr. M. Azam Khan, Add!. Advocate General, NWFP, instructed by Mr. Nur Ahmad JOian, AOR for Appellant (in CrA. Nos. 22(S)/89, 18(S)/90, 19(S)/90 and 26(S)/90). Mr. K.G. Sabir, Advocate, Supreme Court, instructed by Mian Shakirullah Jan, AOR for Appellant (in CrA. No. 17(S)/90) and for Respondent No. 3(in CrA. No. 22(S)/89). Mr. M. Aslam Uns, Advocate, Supreme Court, instructed by Mr. Ejaz M. man, AOR for Respondents No. 1 & 2 (in CrA. No. 22(S)/89) and for Respondent No. 2 (in CrA. No. 19(S)/90). Mr. Manzoor Illahi, Ex-AOR (absent) for Respondent No. 4 (in CrA. No. 22(S)/89). Mian Shakirullah Jan, AOR for Respondent (in CrA. 26(S)/90). Other Respondents: Not represented. Dates of hearing: 16 and 17.2.1993. judgment Shafiur Rahman, J.-Leave to appeal was granted first of all in Criminal Appeal No.22 (S)/1989 to examine whether the Federal Shariat Court had rightly decided the question of its jurisdiction over the Federally Administered Tribal Areas (FATA). In the other four appeals the same question arose and had to be examined on the strength of the leave earlier granted in Criminal Appeal No.22(S) of 1989. In four of these appeals the State through the Advocate- General, N.-W.F.P. is the appellant and in one (Criminal Appeal No.l7(S)/90) the convict Azizur Rahman is the appellant. 2. The accused in all these appeals were allegedly found in possession of Heroin in the Federally Administered Tribal Areas of Mohmand, Bajaur and Khyber Agencies. For example, from Sajjad Hussain and Ali Gohar (respondents in Cr.A.22(S)/89 and CrA.19(S)/90) 10 k.g. of Heroin was recovered, from Azizur Rahman (respondent No.3 in CrA.22(S)/89 and respondent in CrA.18(S)/90 and also appellant in Cr.A.17(S)/90) 24 k.g. of Heroin was recovered, and from the Godown of Said Amu- (respondent in Cr A.26(S)/90) 72 k.g. of Heroin was recovered. All of them were tried by the Political Agents of various grades exercising powers of Additional Magistrates under the Frontier Crimes Regulation 1901 (FCR) and were sentenced to imprisonment. In the first round before the Federal Shariat Court, Sajjad Hussain and Azizur Rahman filed Regular Appeals against their convictions and sentences. Ali Gohar filed an appeal against his conviction and sentence from Jail. These three matters were taken up by the Federal Shariat Court on 8.2.1989 and the preliminary jurisdictional issue was decided. After examining the various constitutional provisions the Court by its judgment dated 8.2.1989 held that the objection to the jurisdiction of the Federal Shariat Court was misconceived and ordered that the three appeals be fixed for regular hearing. Criminal Petition for Leave to Appeal No.29-R(S) of 1989 was filed by the State through Advocate-General, N.-W.F.P. against the decision on this preliminary issue and leave to appeal was granted on 27.6.1989. It was also ordered that further proceedings before the Federal Shariat Court shall remain stayed in the three appeals in which the consolidated judgment had been given by the Federal Shariat Court and which was the subject-matter of grant of leave to appeal. Notwithstanding the stay of proceedings, these three appeals of Sajjad Hussain, Ali Gohar and Azizur Rahman pending in the Federal Shariat Court were heard and decided on 5.7.1989. The conviction and sentences were set aside and their cases were sent to the competent court for trial. The matter of their bail was also left to be considered by the trial court. Against these three judgments also, separate Petitions for leave to appeal (now CrA.No.l7(S) to 19(S)/90) were filed and the main ground taken up is that in view of the stay order granted by this court the Federal Shariat Court was left with no jurisdiction to decide the matter in defiance of it. Said Amir's case was not subject to any such interim order and proceeded to a decision on 16.11.1989 wherein also retrial under Code of Criminal Procedure by a competent court was directed. 3. The contention of the learned Additional Advocate-General N.-W.F.P. that on the strength of Article 247(7) of the Constitution and Federally Administered Tribal Areas (Exclusion of Jurisdiction of Federal Shariat Court) Order, 1984 (President's Order 5 of 1984) which stands protected and remains effective under Article 270-A of the Constitution the jurisdiction of Federal Shariat Court remains ousted from the Federally Administered Tribal Areas. 4. In order to examine the full amplitude of the argument addressed before us, we have necessarily to start with the Prohibition (Enforcement of Hadd) Order, 1979 (President's Order 4 of 1979) under which the trial had taken place. It was promulgated by the President and Chief Martial Law Administrator in pursuance of the Proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C.M.LA. Order No.l of 1977), and in exercise of all powers enabling him in that behalf. Article 1(2) of this P.O. 4 of 1979 provides that it extends to whole of Pakistan. Article 29 of it provides "this Order shall have effect notwithstanding, anything contained in any other law for the time being in force." The trial has to take place under provisions of Criminal Procedure Code unless otherwise expressly provided in P.O.4 of 1979. Offence under Article 8 of P.O.4 of 1979 i.e. drinking liable to hadd alone is triable by a court of sessions. The Presiding Officer of the trial court as well as the appellate authority have to be a Muslim under Article 30 of P.O.4 of 1979. 5. There are two limitations relevant to these appeals in Article 247 of Constitution. The first is contained in sub-Article (3) which provides as hereunder:- "No Act of Majlis-e-Shoora (Parliament) shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no Act of Majlis-e-Shoora (Parliament) or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof, unless the Governor of the Province in which the Tribal Area is situate, with the approval of the President, so directs; and in saving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction." The second limitation is contained in sub-Article (7) which provides as hereunder:- "Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless Majlis-e-Shoora (Parliament) 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." 6. As the P.O.No.4 of 1979 is not an Act of Majlis-e-Shoora but is a Constitutional Order made by the President and the Chief Martial Law Administrator and is expressly said to extend to whole of Pakistan within which is included the Federally Administered Tribal Areas, this Order No.4 of 1979 would extend to Federally Administered Tribal Areas. This is further borne out by the fact that it was taken to be so extended to the Federally Administered Tribal Areas by the Presidential Order No.5 of 1984. It was enforced on 8.10.1984 and was deemed to have taken effect on the 25th of June, 1980. By its Article 2 it provided as hereunder:- 2.° "Jurisdiction of Federal Shariat Court not to extend to the Federally Administered Tribal Areas. (1) The jurisdiction of the Federal Shariat Court shall not extend, and shall be deemed never to have extended, to the Federally Administered Tribal Areas. (2) Notwithstanding the judgment of any Court, including the Federal Shariat Court, all laws in force in the Federally Administered Tribal Areas shall be deemed to be and always to have been, valid and shall not be called in question before any Court on any ground whatsoever." 7. The efficacy of P.O. No. 5 of 1984 till the revival of the Constitution is not in dispute. However, after such revival its status as a Constitutional or as a sub- Constitutional provision is required to be examined. The relevant provisions for determining this question are sub-Articles (1), (3) and (6) of Article 270-A of the Constitution which are reproduced hereunder:- "270-A. Affirmation of President's Order etc.-(T) The Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P.O. No. 11 of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December, 1984, General Muhammad Zia-ul-Haq became the President of Pakistan on the day of the first meeting of the Majlis-e-Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of 1973 Order, 1985 (P.O. No. 14 of 1985), the Constitution (Second Amendment) Order, 1985 (P.O. No. 20 of 1985), the Constitution (Third Amendment) Order, 1985 (P.O. No. 24 of 1985), and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force, are hereby affirmed, adopted and declared, notwithstanding any judgment of any court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any court on any ground whatsoever: Provided that a President's Order, Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to, the revocation of the Proclamation of the fifth day of July, 1977. (2) ............................. (3) All President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority. Explanation.—In this clause, "competent authority" means,-- (a) in respect of President's Orders, Ordinances, Martial law Regulations, Martial Law Orders and enactments, the appropriate Legislature; and (b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law. (4) (5) (6) Such of the President's Orders and Ordinances referred to in clause (1) as are specified in the Seventh Schedule may be amended in the manner provided for amendment of the Constitution, and all other laws referred to in the said clause may be amended by the appropriate Legislature in the manner provided for amendment of such laws. Explanation.—In this Article "President's Orders" includes "President and Chief Martial Law Administrator's Orders" and "Chief Martial Law Administrator's Orders."." These provisions read together alongwith the decision in Miss Benazir Bhutto versus Federation of Pakistan and another (PLJ 1988 S.C. 306) establish that such protected instruments continue as sub-constitutional provisions unless protected in the Schedule of the Constitution itself and they cannot be set up to or be made the test of the existence, efficacy and application of other constitutional provision as such. 8. The jurisdiction of the Federal Shariat Court in such matters is traceable and confined to what is provided in Chapter 3A of Part VII of the Constitution and the relevant Article is Article 203A which reads "the provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution". The pre-eminence and supremacy of this provision is established over the other provisions in the Constitution and it has been clarified so in the case of Qazalbash Wqqfand others versus Chief Land Commissioner, Punjab, Lahore and others (PLJ 1989 S.C. 600) by the Shariat Appellate Bench of this Court. After the Revival of the Constitution, P.O. No. 5 of 1984 cannot compete with or stand against'Article 203-A of the Constitution. 9. The other provision invoked by the learned Additional Advocate-General namely clause (7) of Article 247 of the Constitution is inapplicable to the Federal Shariat Court because it expressly mentions the Supreme Court and the High Court and excludes the Federal Shariat Court. What is excluded by express words cannot be included on any principle of interpretation. 10. In the circumstances, we find that the Federal Shariat Court rightly decided the preliminary legal point with regard to its jurisdiction over the Federally Administered Tribal Areas. Hence, Criminal Appeal No. 22(S) of 1989 is dismissed. 11. The other objection that after a stay order had been passed in Criminal Appeal No. 22(S)/1989, the three appeals which were subject-matter and covered by the stay order should not have been disposed of by the High Court while such stay lasted, is correct. It appears that when these appeals came up for decision the stay order had not been communicated to the Federal Shariat Court. The judgments/orders do not show the awareness of its existence or effect. The law on the subject has been fully established by decision in Karam All versus Raja (PLD 1949 Lahore 100) approved by this court in Abdul Rashid Khan and 2 others versus Mst. Nasitn Akhtar (1974 SCMR 509) that the stay order operates from the time it is passed and is not dependent on the receipt of it. In the circumstances, the judgments/orders of the Federal Shariat Court in these three appeals i.e. Criminal Appeals 17. 18 and 19 (S) of 1990 are set aside as being violative of the stay order and the. appeals No. 17(5), 18(S) and 19(S) of 1990 stand accepted. Nevertheless, the effect will remain the same because a retrial by the competent court is called for and is directed. Criminal Appeal No. 26(S) of 1990 is dismissed for the reason that it was not affected by the stay order and the decision needs modification only to the extent that the trial would take place under the Criminal Procedure Code and by a competent court which may not necessarily be in all cases the court of sessions. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1993 SC 385 PLJ 1993 SC 385 [Appellate Jurisdiction] Present: SHAFiUR rehman, abdul qadeer chaudhry and muhammad afzal lone, JJ ABBAS-Appellant versus HON'BLE CHIEF JUSTICE, THROUGH REGISTRAR, HIGH COURT OF SINDH, and 2 others—Respondents Civil Appeal No. 570-K of 1990, accepted on 2.2.1993 [On appeal from order of Sindh Service Tribunal at Karachi, dated 13.10.1988, passed in Appeal No. 23 of 1988] Sindh Civil Servants Act, 1973- —S. 26 read with Constitution of Pakistan, 1973, Article 241-Employee of Sindh High Court-Reversion to substantive post of-Appeal before Service Tribunal-Whether appeal not competent-Question of-Held: High Court Establishment (Appointment and Conditions of Service) Rules were framed by High Court, and by reading section 26 of Act and Article 241 of Constitution, same would be deemed to be rule c framed under Act and any violation of same would be justiciable before Service Tribunal-Appeal accepted and case remanded to Tribunal for decision on merits. [Pp.392&393]A,B,C&D Mr. Sabihuddin Ahmad, Advocate, and Mr. A. Aziz Dastgir, AOR (absent) for Appellant. Mr. Abdul Ghafoor Mangi, Addl. A.G. Sindh and Mr. Faizanul Haq, AOR (absent) for Respondents 1&2. Respondent No. 3 in person (absent). Date of hearing: 2.2.1993. judgment Shafiur Rahman, J.--Leave to appeal was granted to the appellant under Article 212(3) of the Constitution to examine whether the appellant was not a civil servant for the purposes of Section 2(b) of the Sindh Civil Servants Act, 1973 (hereinafter referred to as the Act) and Section 2(a) of the Sindh Service Tribunals Act, 1973. 2. In the year 1976 the appellant held the post of Assistant in the Sindh High Court establishment and was governed by the High Court Establishment (Appointment and Conditions of Service) Rules (hereinafter referred to as the Rules). In the rr.atter of promotion to the next higher post of Superintendent he was governed by Rule 8 which provided as hereunder- "Subject to the right of the Chief Justice to make direct appointment, vacancies in the posts of Superintendents shall be filled by promotion on the basis of seniority-cwm-fitness from amongst Assistants as forming one group and Judgment-Writers and Readers as forming the second group, in the proportion of 3:2 as shown below: - First vacancy Assistant Second vacancy Judgment-Writer Third vacancy Assistant Fourth vacancy Reader Fifth vacancy Assistant Sixth vacancy Distretion of Chief Justice." 3. On 27.3.1976 three promotions as hereunder were ordered:-"The Chief Justice has been pleased to order the following promotions and appointments with immediate effect:- (1) Mr. M.M. Hakk, Reader.promoted to officiate as Superintendent, High Court of Sindh and Baluchistan, Karachi , in Grade No. 16 vide Mr. S.M. Alvi, posted as Assistant Registrar; (2) Mr. Abbas H. Kassim, Assistant, promoted to officiate as Superintendent. High Court of Sindh and Baluchistan, Karachi , in Grade No. 16 vide Mr. Ansar Hussain Zaidi, posted as Assistant Registrar/Nazir. 13) Mr. Sultan Nasir, Reader, promoted to officiate as Superintendent in Grade No. 16 vide Mr. Afzal Ali, granted leave." 4. On 2.7.1976 the following order was passed:- "On resumption of duty by Mr. Afzal Ali Superintendent on 29.6.1976 (F.N.) Mr. Abbas H. Kassim who was promoted in his leave vacancy has been reverted to his substantive appointment as Assistant with effect from 29.6.1976 (F.N.)." 5. The background in which this- order dated 2.7.1976 was passed would become clearer from the following notings made in the record:- It is submitted that Mr. Afzal Ali, Superintendent, was granted leave for 3 months which will expire today, the 28th June, and he is due to resume his duties on 29th June, 1976. Therefore, one of the Superintendents, recently promoted will have to be reverted. In fact Mr. Abbas H. Kassim (Assistant) was promoted in the leave vacancy of Mr. Afzal Ali but thereafter in the vacancy of Mr. A.R. Abbasi, Mr. Younas Khatri was promoted vide orders dated 24.4.1976 of my lord the Chief Justice. It is submitted that Mr. Abbas H. Kassim was warned to be careful in the case of "Purchase of Lawn Mower" and written warning was administered on him and kept on his Confidential file. The file is placed below. It is, therefore, submitted for favour of consideration whether:-- (1) Mr. Younus Khatri who is the junior most Superintendent, having been promoted in the vacancy of Mr. A.Ri Abbasi, may be reverted; OR (2) Mr. Abbas H. Kassim, who was appointed in the leave vacancy of Mr. Afzal Ali and his work was not found satisfactory as Resident Superintendent, be reverted as Assistant. Submitted: Sd/ REGISTRAR 28.6.1976 Chief Justice Duties performed by Mr. Abbas Kassim were not satisfactory. He is therefore reverted as Assistant. Sd/-CJ. 29.6.1976" 6. The appellant made no grievance of the order then or soon thereafter. After three years of it on 29.7.1979 he filed a service appeal challenging the order of the Chief Justice dated 31.5.1976 followed by the order dated 2.7.1976 seeking reinstatement on the post of Superintendent with effect from the date of reversion. 7. The order dated 31.5.1976 appears to be no other than what was communicated to him on 3.6.1976 as hereunder:-"Mr. Abbas H. Kassim, Superintendent Administration Branch, is hereby informed that his lordship the Chief Justice has observed that he proved to be careless in the performance of his duties during the period he worked as Resident Superintendent.His lordship has further observed that several complaints against him were received from the Judges of this Court including Mr. Justice Mir Khiida Bakhsh Marri. He is, therefore, warned." 8. The appellate authority designated under Schedule II of the Rules was "Bench of two Judges nominated by the Chief Justice". It was entrusted to a Bench of two Judges who disposed it of on 5.6.1980 by an order as hereunder:- "This appeal, we have noticed was filed after a lapse of three years and though there is some doubt as to whether the lalw prescribed any period of appeal, this appeal, in the nature of things, ought to have been filed within a reasonable time. Our attention has not been invited to any circumstances which would justify such a long delay in filing this appeal. The fact, however, remains that injustice has been done to the appellant and we will, therefore, strongly recommend that if it is possible appellant's grievance may be rederessed or in the alternative as and when occasion for next promotion arises the appellant will be duly considered." 9. This appellate order was attended to by the learned Chief Justice as hereunder:-- "As at (ii) above. This would comply with the orders of the Bench. Those already promoted vide list at P. 126-127 not to be disturbed."What .was suggested in Para (ii) was as hereunden- "This matter was also brought to the notice of the Hon'ble Chief Justice by the then Registrar in his note dated 15,6.1980. The Registrar in his note (pages 126-129/Notes) of file No. V.Z. (3)(a) had sought orders of the Hon'ble Chief Justice on the following proposals:- (i) Whether M/S Muhammad Essa and Abbas Kassim may be promoted as Superintendents in their respective Divisions and the Junior most Superintendent in that Division may be reverted; OR (ii) they will be considered for promotion as and when the vacancy in their respective Divisions will fall vacant." 10. On 13.1.1982 the appellant was promoted again as Officiating Superintendent with effect from 7.1.1982 until further orders in a leave vacancy. 11. On 4.5.1982, the appellant filed a representation claiming seniority hi avoidance of reversion which had taken place on 2.7.1976. First a report was called for from a learned Judge of the High Court. He reported as hereunder:- "Reverting to the order of the Division Bench, i£ would appear that no express direction has been given for promotion of Mr. Abbas Kassim. The order is only recommendatory. It has been left to the discretion of the learned Chief Justice that he may redress the grievances of the applicant immediately or in the alternative consider him for promotion when next promotion takes place. It seems second alternative was given effect to. Mr. Abbas Kassim was promoted in the next vacancy without disturbing the promotions already made. Thus on repromotion he was not restored to his original position. However on consideration of the views expressed in the foregoing Paragraph, he perhaps has a good case to be entitled to back benefits. He can be restored to original seniority by withdrawal of the order of his reversion.Learned Chief Justice may like to call me for discussion at his convenience." 12. The Chief Justice kept the case for discussion with the reporting Judge which never took place. This case, alongwith the confirmation question came up before the senior Puisne Judge who finally dealt with the matter on 6.10.1987 as hereunden- "The factual position seems to be that the reversion order of Mr. Abbas Kassim has not been withdrawn by the then Chief Justice after due consideration. In this view of the matter, the dates of confirmation proposed in the office note are in accordance with the record as stands. In the absence of withdrawal of the aforesaid order of reversion, Mr. Abbas Kassim cannot claim seniority over Mr. Sultan Nasir, who was confirmed on 25.10.1982 with effect from 1.12.1976. In my view the office proposal be accepted as Mr. Abbas Kassim's objection has no merits for the reasons namely (i) Mr. Justice Abdul Kadir Shaikh had ordered reversion of Mr. Abbas Kassim to his substantive post of an assistant for the reason that his lordship was of the view that his work was not satisfactory (ii) Mr Justice Abdul Hayee Kureshi opted for the second alternative suggested by Mr. Justice Fakhruddin G. Ebrahim and Mr. Justice G.M. Shah i.e. instead of withdrawing the order of reversion of Mr. Abbas H. Kassim, he was promoted against a permanent vacancy on the aforesaid date," This order was agreed to by the learned Chief Justice on 1011.1987 in the following words:- "I agree. Officers mentioned on pages 136 to-are confirmed from the dates mentioned in original column against their names." 13. The appellant approached the Sindh Service Tribunal on 28.3.1988 expressing his grievances against the following orders:- "(i) rejecting the representation dated 4.5.1982 fileld by the appellant claiming seniority over Mr. Sultan Nasir Superintendent, (ii) over-ruling the objections filed by the appellant on 20.9.1987 against his confirmation as Superintendent next to Mr. Saleemuddin Superintendent. (iii) justifying his reversion vide notification dated 2,7.1976 as proper contrary to the judgment dated 5.6.1980 given by the Division Bench constituted of Mr. Justice Fakhruddin G. Ebrahim and Mr. Justice G.M. Shah since • retired who have declared the reversion unjustified and unfair, (iv) over-ruling the report dated 20.5.1982 obtained by the then Chief Justice Mr. Justice Abdul Hayee Qureshi from (Retd.) Mr. Justice Munawar Ah' Khan Mughal on the question of the seniority of the appellant over Mr. Sultan Nasir and; (v) the order dated 16.5.1985 passed by then Hon'ble Chief Justice Mr. Justice Abdul Hayec Qureshi assigning the seniority to the appellant". 14. The'reliefs sought for by him were as hereunder:- "It is prayed by the appellant that after perusal of the relevant record of the Hon'ble High Court of Sindh including the relevant office note, the order dated 6.10,1987 passed by the Hon'ble Chief Justice which amounts ' to double decision on the very same issues (Note: Judgment dated 5.6.1980 of the Division Beach is on the same issues), be set-aside and the relief as recommended in the judgment of Division Bench, authenticated report dated 20.5.1982 of Mr. Justice Munawar Ali Khan Mughal and the order dated 16.5.1985 of ihe Hon'ble Chief Justice Mr. Justice Abdul Hayee Qureshi be given to the appellant including any other relief as deemed necessary by the kind authority." 15. The Service Tribunal did not entertain the appeal for the following two reasons:- (i) "Obviously the impugned order does not relate to the terms and conditions of service arising from said Act and rules. It speaks of the decision under High Court rules referred to above which are applicable to the High Court employees including the appellant. Accordingly this Tribunal cannot interfere in this case." (ii) ".. it was disclosed by the learned counsel for the appellant, in course of his arguments that appellant had preferred the departmental appeal to the -Chief Minister. As stated above he also produced the appeal alongwith enclosures in original. These documents were not produced at the time of presentation of the present appeal. Therefore the belated production was after thought. Although the said documents seemed to have been received by the Despatch Clerk of High Court on 1.12.1987, yet there is no indication that the same were forwarded to the Chief Minister. In any case the appeal did not lie to the Chief Minister. As provided in schedule II of the High Court Rules appeal was to be preferred to a Bench of two Judges nominated by the Chief Justice, since the impugned order was passed by Single Judge and the same was endorsed by the Chief Justice. But no such appeal was filed. Thus even the mandatory requirement of law of exhausting departmental remedy was not complied with before filing the present appeal." 16. The learned counsel for the appellant has contended that the Rules framed by the High Court were saved, continued, and deemed to be the Rules framed under the Act on the strength of Section 26 of the Act. According to him the first reason given by the Tribunal was untenable arid misconceived. The second ground was equally untenable once it was found that the appeal in time was filed in the High Court notwithstanding its being incorrectly addressed to the Chief Minister. He has also drawn our attention to Manzoor Hussain and 37 others versus Province of the Punjab (1989 PLC (CS) 42 - Lahore High Court) and Mubarak Ali KJian and 7 others versus Government of the Punjab through Secretary, Finance Department, Lahore and another (1990 C.L.C. 136 - Lahore) to contend that members of the High Court establishment have been held to be not civil servants. He has also gone into the merits of the claim. 17. So far as merits of the case is concerned, we would not examine it for the first time, there being no finding by the Tribunal on it. That exercise would be outside the leave granting order and outside our jurisdiction under Article 212(3) of the Constitution. 18. As regards the penultimate submission, we would not undertake an examination of it because the Tribunal has not recorded any finding on it. Besides, the appellant having himself invoked the jurisdiction of the Service Tribunal cannot be permitted to express doubts about it. Additionally, it is not a question on which leave to appeal has been granted under Article 212(3) of the Constitution. 19. In recording the finding that the order challenged by the appellant did not relate to the terms and conditions of service arising from the Act and the rules frame'd thereunder, Section 26 of the Act was ignored. Section 26 of the Act reads as hereunden- "26. Rules: (1) Government or any person authorised by it in this behalf, may make such rules as appear to be necessary or expedient for carrying out the purposes of this Act. (2) Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act." The Rules under which the orders were passed related to the terms and conditions of the service of the appellant. The High Court had a statutory authority to frame those rules. Article 241 of the Constitution also made a provision for continuance and applicability of such rules in the following words:-"241. Existing rules, etc. to continue.-- Until the appropriate Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government." 20. Reading section 26 of the Act and Article 241 of the Constitution together, the High Court Establishment Rules would be deemed to be rules framed under the Act and for that reason any violation of it justiciable before the Service Tribunal. 21. As regards the second ground of not filing the proper appeal before the appellate authority, once the Tribunal came to the conclusion that an appeal was filed before the High Court though it was not properly addressed and it was not returned by the High Court, it should have been treated as an appeal because notwithstanding the incorrect description, the appeal lay to the two Judges of the High Court. The Service Tribunals have been taking a more liberal view of such dereliction as would appear from the decision in ShujaatAti Qami versus Director- General/Joint Secretary, Ports and Shipping Wing, Ministry of Communications ami 2 otliers (1983 P.L.C. (C.S.) 709 - Federal Service Tribunal). 22. The appeal is accepted. The order of the Service Tribunal declaring the appeal to be Incompetent is set aside and the case is remanded to the Service! Tribunal for decision on merits. No order is made as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 393 PLJ 1993 SC 393 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAH, CJ, ABDUL QADEER CHAUDHRY, AND saleem akhtar, JJ FAYYAZ AKHTAR-Appellant versus THE STATE-Respondent Criminal Appeal No. 134 of 1991, accepted on 25.1.1993 (approved for reporting on 3.2.1993) [From judgment dated 7.7.1991, of Lahore High Court, Multan Bench, passed in Crl. Appeal No. 66 of 1977 and Crl. Revision No. 142 of 1977J Acquittal- —Murder-Offence of~Acquittal set aside by High Court-Challenge to~ Difference of opinion regarding appreciation of evidence, could not be a good ground for setting aside an acquittal—Reasons advanced by trial judge were neither perverse nor fanciful—There was no misreading of evidence-Held: Learned High Court did not take into consideration principles laid down by Supreme Court in deciding appeal against acquittal-Appeal accepted and appellant acquitted. [P397JA&B 1991SCMR 2220, PLD 1985 SC 11 and 1991 SCMR 94 rel. Dr. Khalid Ranjha, Advocate, Supreme Court, assisted by Rana Maqbool Ahmad Qadri, AOR for Appellant. Mr. Mubashir Latif Ahmad, Advocate, Supreme Court (absent). Mr. Hamid Aslant Qureshi, AOR (absent) and Raja Abdul Ghafoor, AOR for Respondent. Date of hearing: 25.1.1993. judgment Abdul Qadeer Chaudhry, J.-This appeal under Article 185 (2) (a) of the Constitution has been filed against the judgment of Lahore High Court dated 7.7J991 whereby it reversed the order of acquittal passed by the Trial Court and convicted the appellant. The facts of the case in brief are that Khawaja Ghulam Abbas on 31.1.1974 lodged a report that he was sitting at the dera of Sh. Noor Muhammad alongwith Bashir Ahmad and Khurshid when Fayyaz son of Ghulam Rasool fired from the back which hit him on the back shoulder and as he tried to get up the appellant fired two/three more shots which hit him on the legs. This occurrence had taken place as a result of political disturbances and he had been made a scape goat. Kh. Ghulam Abbas died on 9.2.1974. During the course of investigation, Ghulam Rasool, father of the appellant (was) also arraigned as an accused. The case was challaned against the appellant and his father and they faced trial on the charge of murder. The learned trial Judge acquitted the accused vide judgment dated 12,6.1976. The State fded criminal appeal and the complainant filed criminal revision hi the High Court. The State's appeal against Ghulam Rasool was dismissed but the appellant's acquittal was set aside. He was convicted under Section 301 PPC and sentenced to life imprisonment and fine of Rs. 10000/- or in default two years R.I. He was also ordered to pay Rs. 5Q,000/- as compensation to the heirs of the deceased. To bring home the charge against the appellant the prosecution relied upon the direct evidence of PW-13 Bashir Ahmad, PW-14 Sh. Noor Muhammad and PW-I5 Khurshid Ahmed, the dying declaration of the deceased and recovery of gun from the appellant. The learned Trial Court rejected all the three pieces of evidence against the appellant. The learned High Court also discarded the recovery of gun. On the dying declaration it was observed that "statement did not bear the certificate of the doctor that the deceased had remained in his senses when he made the statement". As such the High Court by way of abundant caution excluded the dying declaration from consideration. Thus there remains only direct evidence, the scrutiny of which brought the High Court to the conclusion that the conviction of the appellant could be safely made on the statements of the eye witnesses. The learned High Court has extensively quoted the reasoning of the learned Sessions Judge in disbelieving the statements of the eye witnesses. After quoting the observation of the trial Court, the High Court itself appraised the evidence of the eye witnesses and accepted the same.The reason which weighed with the learned Sessions Judge in discarding the direct evidence was that; "the police brought the deceased from the spot and not the eye witnesses. Therefore the presence of eye witnesses at the spot when the occurrence had taken place could not be accepted because according to the eye witnesses they had brought the injured to the hospital". The evidence of these witnesses was also disbelieved as it was not corroborated by some independent source. PW-13 Bashir Ahmed was an associate of the complainant party. Shaikh Noor Muhammad and Khurshid Ahmed were also not independent and disinterested witnesses". It was also noted that "family of the deceased had enmity with the accused and the said witnesses were admittedly their supporters". In this context reliance was placed on the evidence of PWs Ghulam Abbas, PW-16 who admitted that two cases were registered at the instance of Ghulam Rasool against many-persons including the deceased. It was also observed by the trial Court uiat "the eye witnesses had changed their position from the one taken by them before the learned trial Judge". The High Court has noted the finding of the trial Court which is reporduced below: - "During trial they stated that accused Fayyaz Akhtar fired the first shot at the deceased from north-west side and then he came to eastern side wherefrom he fired the second shot, then he unloaded the gun, then re­ loaded it and fired the third shot. In the lower Court the statements Exh. DD, Exh. DA and Exh. DB of Bashir, Noor Muhammad and Khurshid Ahmed with which they were confronted were that the accused fired all the shots from southern side. There was no mention of north-west and eastern side and loading and reloading of the gun by the accused. The testimony of witnesses who change their position as and when it suits them is always looked upon with suspicion. In this view of the matter also no reliance can be placed on the testimony of the eye witnesses." It further added that: "According to them, they were present in the Hospital. But they did not talk to any body about the incident though several persons had collected there. Not only this they did not inform the DSP (PW-16) and even Ghulam Ilyas (PW-6), that they had witnessed the occurrence and had brought the deceased. None of them also went to the house of the deceased and the police station to inform about the incident. It becomes difficult for the courts to believe such witnesses who kept quiet, though they claimed to have witnessed the occurrence". The trial Court also took into consideration the statement of Khan Muhammad PW-11 who stated that there were many complaints against Ghulam Abbas deceased, PW Ghulam Ilyas and his brother and that "net only the people of Taunsa were not happy with Ilyas and the deceased but their father had also condemned them". The trial Court therefore came to the conclusion that the deceased and his brother had several enemies as such the possibility of the deceased having been murdered by one of those cannot be excluded The trial Court held that "prosecution failed to prove presence of eye witnesses at the spot","they were not independent and disinterested witnesses, the occurrence might have been witnessed by some other persons who were not prepared to become witnesses and thereby risk animosity of the accused". The learned High Court however disagreed with the finding of the trial Court. It was observed that the three eye witnesses were natural witnesses and even if Sh. Noor Muhammad and Khurshid Ahmed were interested witnesses, they had charged only one man Fayyaz Akhtar with the commission of the offence and substitution is a thing of rare occurrence. The finding of the Trial Court that the witnesses had not accompanied the injured was also not accepted by the High Court on the ground that the doctor did not know who had carried the deceased to the hospital. The conclusion which was drawn by the High Court is as under:- "In view of what has been said above, the learned trial Judge was wholly wrong in disbelieving the eye witnesses Bashir Ahmad, Sh. Noor Muhammad and Khurshid Ahmad. It was, therefore, not necessary to take into consideration the alleged enmity of the deceased man with other persons. However, it must need be observed in that connection that it was neither legal nor fair to the Ex. DG a copy of an application said to have been made by the deceased's father long after the incident, that is on 11.9.1975, against the character of the deceased, without formal proof. The High Court in para 47 of the judgment has stated as follows: - "We" are, therefore, of the opinion that the reasons which led the learned trial Court in disbelieving the eye witnesses, Bashir Ahmed PW-13 Sh. Noor Muhammad PW-14, and Khurshid Ahmad PW-15, were of speculative and artificial nature and that they have led to miscarriage of justice. We would, therefore accept the State appeal, set aside the acquittal of the respondent, Fayyaz Akhtar, and convict him under Section 302 of the PPC". According to the High Court the reasons given by the Trial Court were of "speculative and artificial in nature". As regards the principle for interference with acquittal, the learned High Court placed reliance on Ghulam Muhammad vs. Muhammad Sharif (PLD 1969 SC 398). The High Court failed to take notice of the judgment of this Court reported in the case Ghulam Sikandar vs. Mamaraz Khan (PLD 1985 SC 11) in which the entire case law, on this subject was analysed and the Court recorded the following opinion:- "The Court would not interfere with acquittal merely because on re­ appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other prupose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking, and ridiculous". Again this Court in Mian Rashid Ahmad vs. SyedAzeem Shah (1991 SCMR 94) in para 20 has observed as under:- "The law laid down by this Court from time to time on acquittal appeals has been all summarised in the case of Ghulam Sikandar and another vs. Mamaraz Khan and others (PLD 1985 SC 11). One of the principles extracted was that the acquittal can be interfered with if the High Court had disregarded material evidence, misread such evidence or received such evidence illegally." In Feroze Khan vs. Fateh Khan (1991 SCMR 2220) it has been observed that "testimony of the eye witnesses and finding of the High Court showed that at best it could be case of mere difference of opinion regarding appreciation of evidence." Such difference of opinion regarding appreciation of evidence could not be a good ground for setting aside an acquittal. The learned High Court did not take into consideration the principles laid down by this Court in deciding the appeal against order of acquittal. The reasons advanced by the learned Trial Judge were neither perverse nor fanciful. There was no misreading of evidence. Even on material point, the learned High Court has not displaced the finding of the learned trial Judge. We, therefore, accept this appeal, set aside the order of the learned High ? Court impugned in this judgment and restore that of the trial Court. The appellant shall be released forthwith unless required to be detained in any other matter. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 398 PLJ 1993 SC 398 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ, abdul qadeer chaudhry and muhammad afzal lone, JJ MOHABBAT KHAN and 77 others-Appellants versus ROAD TRANSPORT BOARD, NWFP, PESHAWAR, THROUGH ITS CHAIRMAN, and 4 others-Respondents Civil Appeal Nos. 272-P and 273-P of 1990, accepted on 23.12.1992 (approved for reporting on 1.2.1993). [On appeal from judgment, dated 20.6.1990, of Peshawar High Court, passed in Writ Petition No.249 of 1989] Constitution of Pakistan, 1973- —Art. 25~Employees of Road Transport Board—Extension of Old Age Benefits to-Discrimination in-Challenge to-Article 25 of Constitution ordains that all citizens are equal before law and are entitled to equal protection of law—State is, however, not prohibited from making reasonable classification for extending such protection-Old Age Benefits Scheme has been extended to all employees of Board-Held: Argument that employees equal in rank and otherwise qualified for grant of benefits but retiring before 1.7.1988 have been discriminated, does not appear to be without merits-­ Appeals accepted and case remanded for fresh decision. [P.401JA&B 1991SCMR 1041 rel. Mian ShakiruUah Jan, Advocate, Supreme Court/AOR for Appellants (in CA. 272-P of 1990) and for Respondents (in CA. 273-P of 1990) Mr. Abdul Hamid Qureshi, AOR for Respondents (in CA. 272-P of 1990) and for Appellants (in CA.273-P of 1990). Date of hearing: 23.12.1992. judgment Muhammad Afzal Lone, J.--The facts are that the appellants were employees of the N.W.F.P. Road Transport Board, as drivers and conductors. They .retired from service before 7.4.1988 and demanded payment of benefits, to which the employees of an establishment are entitled under the provisions of the Old Age Benefits Act, 1976, but their request was refused. This refusal was assailed by them through W.P. No. 249/82, wherein they prayed for issuance of a direction to the General Manager, Road Transport Board and other respondents, to register them under the provisions of the Act retrospectively and pay the benefits admissible thereunder, in accordance with law. The writ petition was partly accepted vide judgment dated 20.6.1990, which in so far as relevant for the purposes of this appeal is reproduced below:- "It has been brought to our notice that although the G.T.S. had decided to extend the benefits of the Act to its employees with effect from 1.7.1988 but subsequently the Collective Bargaing Agent of the G.T.S. made a request to the Board to grant pension to the Board employees instead of extending the benefits under the Act and it was contended that the petitioners had no cause of action. It was further contended by the learned counsel for the respondents that all the petitioners having retired before 1.7.1988 they were not entitled to claim the benefits under the Act, as also on the ground that they had already received all retirement benefits, or atleast such employees out of the petitioners who had not been employed in the Body Building Workshop were not entitled to claim any benefits what-so-ever under the Act. We cannot accept the first contention of the learned counsel for the respondents for the simple reason that the provisions of the Act were applied to every industry or establishment with effect from 19th April, 1976 when the Act came into force or at least with effect from 1.7.1983 under the provisions of sub-section (4) of Section 1 thereof, as amended by the Employees Old Age Benefits (Amendment) Ordinance, 1983 (Ordinance XVII of 1983), and after the aforesaid date atleast the Body Building Workshop was covered by the provisions of the Act and out of the petitioners the persons who were employed in the Body Building Workshop were definitely entitled to claim the benefits admissible under the Act and the failure of the respondent No. 1 to insure the G.T.S. with the Institution was unjustified and without lawful authority. It is also note-worthy that the benefits admissible under the Act could not be denied to any worker of an establishment for the reason that he had received all retirement benefits if he had not been paid any pension or other benefits which could be claimed under the Act. It may, however, be noted that the drivers and conductors out of the petitioners were not so entitled.We have, therefore, arrived at the conclusion that only those employees of the Board out of the petitioners who were employed in the Body Building Workshop of the G.T.S. were entitled to claim benefits admissible under the Act and the employees out of the petitioners who were working as drivers and conductors could not claim such benefits." 2. Before us this judgment has been challenged by both the sides, and leave to appeal granted to them. The operative part of the leave grant order is as under:- "The question; as to whether the drivers and conductors have been excluded by virtue of an exception provided in Section 47(f) of the said Act having been discussed, the same also has been found fit for examination on the plea raised from their side that they not only worked as drivers and conductors but were also assigned duties on various occasions in the workshop. This appears to be a new element for consideration but in the facts and circumstances of the case it might be necessary to examine it in order to decide the other questions involved in this matter. Accordingly, both the parties are permitted to place on record the material relatable to these questions in addition to the filing of other'essential necessary documents. Accordingly, leave to appeal is granted in both these petitions." 3. It is to be seen that clauses 'a' to 'h' of Section 47 of the Act enumerate different categories of persons to whom the Act does not apply. Clause 'f, on which the employees' case is founded runs as follows:- "(0 persons in the service of statutory bodies other than those employed in or in connection with the affairs of a factory registered under Section 2(j) of the Factories Act, 1934 (XXV of 1934), or the Mines Act, 1923 (IV of 1923): Provided that workshops maintained exclusively for the purposes of repair or maintenance of equipment or vehicles used in such statutory bodies shall not be treated as factories for the purposes of this clause.' It is not disputed that the respondent/Board maintains a workshop falling within the ambit of the proviso. Relying on the proviso on behalf of the appellants (C.A. 272-P/90) it is contended that though they held the posts of drivers and conductors yet they worked in the Workshop, tested the road worthyness of the vehicles repaired in the workshop and thus could not be denied the benefits under the Act. In their submissions, the High Court fell in error in not treating them as employees of the Board for the purposes of the Act. Their learned Counsel has also invited our attention to the Board's order bearing No. 6481/1/1/G dated 24.11.1988, which is reproduced below:- "The Board in circulation has .decided to extend the Old Age Benefits Scheme to all its Employees with effect from 1.7.1988 as per memorandum of settlement arrived at with the Union on 7.4.1988." It is argued that fixation of 1.7.1988 as the target date for grant of benefits under the Act to all the employees resulting in exclusion of those who retired before this date including the appellants is not founded on any reasonable classification meaning thereby that the appellants were discriminated. On the other hand the Board's case is that the Act did not apply to the respondents (C.A. 273-P/90) and further they have already retired from service, and on retirement received all the dues admissible to them under the law. 4. The points urged in support of the employees' appeal appear to be well founded. Article 25 of the Constitution ordains that "all citizens are equal before law and are entitled to equal protection of law." The State is, however, not prohibited from making reasonable classification for extending such protection. In I A. Sherwani vs. Government of Pakistan (1991 S.C.M.R. 1041) this Court had the occasion to examine the issue whether a special date fixed for grant of any privilege or benefit can form a valid basis of classification, and upon the facts of that case, did not approve of such fixation. Under the aforesaid letter dated 24.11.1988, Old Age Benefit Scheme has been extended to all the employees of the Board w.e.f. 1.7.1988, irrespective of the non-applicability of the exclusionary clause envisaged by the proviso to sub-clause 'f of Section 47 ibid. Apparently those who retired after 1.7.1988 are covered by this letter, but those who retired before this date stand excluded. The argument that the employees equal in rank and otherwise qualified for grant of benefits, but retiring before the said date have been discriminated does not appear to be without merit. There is nothing on the record suggestive of any nexus with the object sought to be achieved by the classification rested on the target date of 1.7.1988. It also seems to us that the-appellants' claim that they performed duties in connection with the affairs of the Workshop has also not been dealt with properly and seriously examined at any stage. The case, therefore, shall have to be sent back to the Authorities below for decision afresh. In this view of the matter both the appeals are accepted and the case is remanded to the General Manager, NWFP., Road Transport Board with the direction to re-examine the issues raised by the employees; also hear the departmental point of view and render afresh decision in accordance with law. The parties are left to bear their own costs. (MBC) (Approved for reporting) Appeals accepted.

PLJ 1993 SC 401 PLJ 1993 SC 401 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ, abdul qadeer chaudhry and muhammad afzal lone, JJ SECRETARY, FINANCE DIVISION, GOVERNMENT OF PAKISTAN, and 2 others-Appellants versus MUHAMMAD IQBAL SOLANGI-Respondent Civil Appeal No. 245 of 1991, partly accepted on 23.12.1992 (approved for reporting on 31.1.1993), [On appeal from judgment and order, dated 9.4.1991, of Federal Service Tribunal, passed in Appeal No. 447(R) of 1990] (i) Limitation Act, 1908 (IX of 1908)-- —S. 5.-Delay in filing appeal-Condonation of-Challenge to-Delay in filing appeal was within discretion of Tribunal, which has been exercised in favour of respondent and reasons have been advanced in support thereof—It has not been shown that view taken by Tribunal is arbitrary and capricious-Held: Appellant's objection to maintainability of appeal on ground of limitation fails. [P.405]A (ii) Remand-- —Period of training abroad—To be treated as on deputation—Request of— Acceptance of prayer by Service 'Tribunal—Challenge to—Tribunal's decision in an earlier case, was placed by respondent before Finance Division who declined to follow it-Tribunal chose to make observations that "respondent's case should have been re-considered in light of decision of Tribunal in aforesaid case of Maqbool Ahmed Khakwani, which was accepted by concerned department"—Upon Tribunal's own showing, respondent's case required reconsideration by Finance Division—Held: Tribunal should have remanded case to Departmental authorities for recording of a fresh decision on respondent's representation-Appeal partly accepted and case remanded to Finance Division for re-examination. [P.406JB&C Mr. Faqir Muhammad KJiokhar, Deputy Attorney General, instructed by Mr. Imtiaz Muhammad KJian, AOR for Appellants. Raja Abdul Ghafoor, AOR for Respondent. Date of hearing: 23.12.1992. judgment Muhammad Afzal Lone, J,--The facts are that Muhammad Iqbal Solangi, the respondent herein, a deputationist from the Sindh Government, was serving as an Assistant Educational Adviser in the Ministry of Education. His deputation was for five years, expiring on 24.10.1979. However, in the year 1978 he was nominated for merit scholarship for Master Degree in Business Administration, under the Cultural Exchange Programme sponsored by the Government of Japan. The N.O.C. issued to him by the Ministry of Education on 8.8.1978 clearly indicated that it did not involve any financial liability on the part of the Ministry of Education and Co-ordination, Government of Pakistan. The respondent remained abroad for study during the period from 5.10.1978 to 26.7.1983. After completion of his studies, on his return to Pakistan, he was treated on leave as under:- i) Leave on full pay from — 120 days 5.10.1978 to 1.2.1979 ii) Leave on half pay from -- 200 days 2.2.1979 to 20.8.1979 iii) Extraordinary leave from - 1436 days 21.8.1979 to 26.7.1983 1756 days 2. It is discernible from the record that subsequently the Ministry of Education under their U.O. No. F.ll-6/79-Admn.I. dated 24.9.1985 asked the Finance Division to treat the respondent's entire period of leave as deputation abroad as was-done in the case of trainees sent abroad on Technical Assistance Programme, but this request was declined. The Ministry of Education then made another recommendation that the period of respondent's extraordinary leave be counted towards grant of increment, to which the Finance Division vide their U.O. No. F.3(12)-R.10/85, dated 5,2.1986, did not agree. Thereafter, the Minister of Finance was moved for relaxation of rules to treat the period of studies abroad as deputation like the Technical Assistant Programme, but the respondent's this attempt also failed. 3. It is on the record that another Assistant Educational Adviser to the Ministry of Education, namely, Maqbool Ahmad Khakwani, remained on deputation on a training course at Paris, under the. Cultural Exchange Programme. A sanction letter dated 2S.J1.19S1 was issued in his favour, specifying that for the period of training he would be considered on deputation and entitled to pay and allowances in accordance with the Ministry of Finance O.M. No. F.8(2)-R-II (ii)/58 dated 31.10.1958. Subsequently this letter was cancelled as the incumbent could not proceed abroad to attend the session, for which it was issued. However, he attended the next session, for which instead of issuing a sanction letter on the terms aforesaid, he was granted Ex-Pakistan leave. He went abroad on training and therefrom he pressed his claim continuously for being treated as on deputation, but his grievance was not redressed. Ultimately he filed an appeal before the Service Tribunal, which was allowed in June 1988. It appears that on the respondent's request, the Ministry of Education once again made reference to the Finance Division for grant of financial benefits to him on the basis of the Tribunal's decision in the cases of Maqbool Ahmad Khakwani and another Officer of the Education Ministry, namely, Dr. R.A. Sial. This proposal was also ' rejected, as in the opinion of the Finance Division the respondent's case was neither covered by the relevant rules nor the precedents relied upon in this behalf. Thereafter, the respondent made another representation dated 15.8.1990 to the Federal Minister for Finance, requesting him to accord sanction, as a special case, to treat his period of extraordinary leave from 5.10.1978 to 26.7.1983 as on duty abroad but as borne out from the Finance Division U.O. No. 3(12)-R.10/85 dated 1.10.1990 this request was also not acceded to. Having met continuous failures at the hands of the departmental authorities, he on 29.10.1990 preferred an appeal before the Service Tribunal for issuance of a direction that the period of studies abroad be considered as deputation and full pay including other emoluments for the said period be paid to him. The appeal was accepted vide order dated 9.4.1991, which has been assailed before us in this appeal through leave to appeal. 4. Before the Tribunal the respondent relied upon the Office Memorandum dated 31.10.1958 and urged that its terms were applicable to his case. This argument prevailed with the Tribunal. In accepting the appeal it took the view that:- "The connotation of the term "trainee" contained in the said Office Memorandum, reproduced above, does extend to the persons going abroad for study or even for observation and the persons going for study under the Cultural Exchange Programme sponsored by a foreign country. Even if any doubt is entertained at any level, the appellant's case was covered by paragraphs 2 and 3 of the aforesaid Office Memorandum. reproduced above. The appellant has filed a photostat copy of his note dated 10.8.1978 submitted by him that he may be extended necessary duty leave facilities with full pay to enable him to avail of the scholarship. His request was duly processed and his request was finally approved by the Secretary, Ministry of Education on 16.8.1978 and the appellant proceeded for study thereafter. In all fairness, the Finance Division should have agreed to the proposal made by the Ministry of Education to allow the appellant the facilities of deputation. This Tribunal did examine the scope of the aforesaid O.M. dated 31.10.1958 in appeal No. 19 (R)/85 filed by Mr. Maqbool Ahmad Khakwani and held that the provisions thereof did extend to the persons proceeding for study under the Cultural Exchange Programme. It was stated at the hearing that the judgment of the Tribunal was not appealed against and it was rather given effect to. The Tribunal has observed in more than one case that its decisions in one case may be followed by the department in the cases of identical nature and the Supreme Court has upheld that view of the Tribunal and pertinent reference may be made to the decision of the Supreme Court •reported in 1984 SCMR 286. Even if the Finance Division had rejected the case of the appellant, his case could have been reconsidered in the light of the decision of the Tribunal in the aforesaid case of Maqbool • Ahmad Khakwani which was accepted by the concerned department. Accordingly, the appellant is entitled to have the benefit of the provisions of the Office Memorandum dated 31.10.1958 and get his emoluments for the period he devoted for his study under the Cultural Exchange Programme, i.e., from 5.10.1978 to 26.7.1983." 5. The operative part of the leave grant order embodying the point urged for consideration in this appeal is re-produced below: - "It is pointed out that the respondent's case was rejected by the Finance Division on 8.10.1985 and again on 25.1.1987 and there was no occasion for re-opening of his case, either by him or by the Ministry of Education after three years. It is, therefore, submitted that the appeal filed by the respondent on 29.10.1990 was hopelessly time barred. It is further submitted that the representation made after the expiry of the period of limitation for filing an appeal before the Service Tribunal does not extend the period of limitation or give it a fresh start. It is also submitted that civil servant proceeding on leave with or without pay cannot claim, at the end of leave period or at any stage, that he was on deputation for the purpose of exploitation of public funds." 6. Dealing with the question of limitation first, from the impugned order, jve find that Memorandum of Appeal before the Tribunal was accompanied by an application for condonation of delay. The condonation in delay was sought on the ground that though the Finance Division rejected the appellants' case more than once but the Ministy of Education all along fully supported him and that he did not remain quiet and has been continuously agitating in the matter. These submissions weighed with the Tribunal; it maintained that the Ministry of Education took up the respondent's case with the Finance Division on the analogy of the case of Maqbool Ahmad Khakwani, but the Financie Division did not reverse its earlier decision. In these circumstances, according to the Tribunal, the respondent was constrained to prefer a departmental appeal before the Finance Minister, which was dismissed. These events in the opinion of the Tribunal justified condonation of delay.It may be observed that condonation of delay in filing the appeal was within the discretion of the Tribunal, which has been exercised in favour of the respondent and reasons advanced in support thereof. It has not been shown that the view taken by the Tribunal is arbitrary and capricious. This Court would be loath to intervene with such an order. The appellants' objection to the maintainability of the appeal on the ground of limitation thus fails. 6. The reasons spelt out from the Tribunal's order for applying its decision in Maqbool Ahmad Khakwani's case to the respondent's case are that the Government authorities did not file any appeal against the same, and rather it was implemented by them. The reasons for not filing the appeal by the Government are not known but the fact remains that their this omission caused a financial loss to the public-exchequer; not only in that case but also furnished a precedent for other cases wherein the public servants were permitted to go abroad on the express understanding that it would not cast any burden on the Government, yet on their return to the Country they succeeded in gaining financial benefits; largely by finding certain loop-holes in the policy regulating the grant of permission to the Government servants to go abroad for training etc. To safeguard the public money such loop-holes need to be plugged. In all fairness, when a Government servant is permitted to go abroad in the public interest, for training or higher study, or acquisition of knowledge, beneficial to the performance of his public duties, the terms and conditions governing his stay abroad should be settled before grant of such permission. It is notewrothy that under para 3 of the Office Memorandum, referred to in the impugned order, the consultation with the Finance Division by the Employing Department, allowing the Government servant to go for training abroad is essential. The tenor of the Office Memorandum demonstrates that such consultation should take place before grant of such permission. Seemingly this procedure was not followed. 8, As already noticed, the Tribunal's decision in Khakwani's case was placed before the Finance Division by the respondent, but they declined to follow it. The 'details of the reasons influencing their decision in this behalf are not available from the record before us. Presumably for this reason the Tribunal chose to make the observations that "the respondent's case should hnve been re-considered in the light of the decision of the Tribunal in the aforesaid case of Maqbool Ahmad Khakwani, which was accepted by the concerned department . Thus, upon the Tribunal's own showing the respondent's case required re-consideration by the Finance Division. The Tribunal, therefore shouid ha\e remanded the case to the Departmental authorities for recording a fresh decision on the respondent's representation. For the foregoing reasons, this appeal is partly accepted, and the case is remanded to the Finance Division for re-examination of the respondent's case; the policy issued regarding grant of permission; as well as, the stray cases in which similar financial benefits were granted to the Government servants. The parties are left ;o bear their own costs, (MBC) (Approved for reporting) Appeal partly accepted.

PLJ 1993 SC 406 PLJ 1993 SC 406 f Appellate Jurisdiction] •Present: MUHAMMAD AFZAL ZULLAH, CJ, AND WAU MUHAMMAD KHAN, J Mst. BAKHTAWAR (DECEASED) REPRESENTED BY A/57. ROSHAN and another-Appellants versus SANATTA and another-Respondents Civil Appeal No,1220 of 1990, accepted on 23.2.1993 (approved for reporting on 28.3.1993) [On appeal from judgment dated 18.9.1989, of Lahore High Court, in Civil Revision No. 564 of 1984] Colonization of Government Lands Act, 1912 (Pb, Act V of 1912)- —-S. 30-A--Allottee of land—Allottee died before obtaining proprietory rights-­ Inheritance of-Whether appellant acquired her share as full owner or limited owner-Question oi—Mst. Bakhtawar s case was not of an estate's devolution to a female from a male last holder under Section 30-A(l)(a) or (b)--Her case was covered by Section 30-A (2} cf Act—Held: On obtaining proprietary rights, Mst. Bakhtawar shall have to be treated as full owner of property in dispute- Appeal accepted. [P.409]A,B&C Mr. Hassan Ahmad Kitan Ka>:-.'ar, Advocate. Supreme Court, and Sh. Salahitddin. AOR (both absent) for Appellants. Syed Miuiir Hussain, Advocate. Supreme Court, and Ch. Muhammad Aslam, AOR (absent) for Respondents. Date of hearing: 23.2.1993. judgment Muhammad Afzal ZuMah, CJ.-This appeal through leave of the Court is directed against the decision by the High Court in a case of inheritauce coming under the Colonization of Government Lands Act. 1912. The leave grant order is as follows: 'Leave to appeal has been sought by the defendants' side; against the acceptance by the High Court, of respondents' Civil Revision in a land inheritance case. Earlier the respondent/plaintiffs' suit was dismissed and their appeal had tailed. "Learned counsel while giving the facts has stated that Ratta the original owner of the land was granted the same under the Colonization of Government Lands Act. He had not yet obtained ihe proprietary rights when he died. The inheritance was mutated in favour of the two sons of Ratta, the propositus, who were alive: as his third son had pre-deceased Him. The two aforementioned sons felt that their pre-deceased brother should not be deprived of the benefit of inheritance. Accordingly, in recognition thereof they transferred l/3rd to Mst. Bakhtawar, the widow of their brother. The present petitioners are the daughters of Mst. Bakhtawar. Learned counsel has further stated that Mst. Bakhtawar paid the price of her share and also obtained proprietary rights and thus had become full owner. She made a gift of the suit land in 1979 which was challenged from the respondent's side through the present suit as being void because they thought that Mst. Bakhtawar was not a full owner and had only a limited interest in the land given to her. This suit was dismissed with the finding by the trial Court that the land in question could not be treated as ancestral qua the respondents and that Mst. Bakhtawar had full proprietary rights in it. She was not a limited owner. This finding was affirmed by the appellate Court which further held that Section 30-A of the Colonization of Government Lands Act was of no help to the respondents' side. On further revision by the respondent' side, the High Court set aside the judgments and decrees passed by the two learned Courts below, decreed the respondents' suit by relying on Ham Din versus Muhammad Din (PLD 1964 S.C.M.R. 80). It was also held that Section 30-A (1) was attracted and Mst. Bakhtawar was a limited owner. "After hearing the learned counsel we consider it a fit case for grant of leave to appeal so as to examine the validity of the impugned judgment as also the questions raised in this petition. Order accordingly". The pedigree-table (prepared with help of the learned counsel) relevant in this case is as follows:- Ratta (died on 2.6.1934) | (mutation on 14.6.1934) Fazal (pre-deceased Sanatta Muhammad Ratta) Bakhtawar (Roshnan) (Nooran) Ratta had not yet paid the proprietary dues when his death took place. The first mutation sanctioned on 14.6.1934 of his inheritance was in favour of Muhammad and Sanatta, his two surviving sons. Fazal the third one had already died. About a year later Muhammad and Sanatta gave l/3rd of the property of what they inherited from Ratta to Mst. Bakhtawar through mutation dated 22.5.1935. Later on Mst. Bakhtawar gifted the said l/3rd property in favour of her daughters in 1979. The case of the appellants who were not represented before us, is that their mother had been given the property in dispute by the brothers of her deceased husband in full ownership neither for life maintenance nor as life estate. The case of the respondents' side; namely, Muhammad and Sanatta was that she (Mst. Bakhtawar) was given only life estate on account of her being widow of Fazal, the third pre-deceased son of Ratta.We having no assistance for the appellants/allottees, sought assistance from the learned counsel for the respondents. He fairly dealt with the matter and explained the case before us on two lines. One, that Mst. Bakhtawar having paid the proprietary dues did obtain the proprietary rights in the land in dispute, therefore, her claim was that she was the full owner of the property and therefore she could gift it away to her daughters without any restriction. On the other hand the respondents' case was covered by the judgment of this Court in Mst. Began vs. Mst. Bai (1983 S.C.M.R. 80) wherein it was held that a widow like Mst. Bakhtawar, if the property is treated that of Fazal, would have only a life estate. The second aspect of the case explained by the learned counsel is that according to Mst. Bakhtawar, Muhammad and Sanatta consciously, being her good brothers-in-law having love and affection for their neices, had alienated and gifted away their rights to the extent of l/3rd- in the property they inherited from their father in favour of Mst. Bakhtawar so that she could pass it on to their nieces. As against this the respondent's plea was that Muhammad and Sanatta had only favoured Mst. Bakhtawar by giving her life estate. After hearing the learned counsel at some length regarding both the aspects^ of the case, vary wisely explained by him, we feel satisfied that in both the [ situations this appeal has to be allowed. Mst. Bakhtawar's case was not of estate's devolution to a female from a male last holder under sub-para (a) of Sub-Section (1) of Section 30-A of the Colonization of Government Lands Act, nor her position was covered by Subclause (b) thereof. Her case was covered by Sub-section (2) of Section 30-A which provided that nothing contained in the said Section shall be construed to alter the law of Succession applicable to any female tenant, in respect of proprietary rights in land acquired by her, if the tenancy in such land was acquired by or accured to her in circumstances other than those specified in sub-section (1). Obviously because her case was not covered by sub-section (1), she under sub-section (2), on obtaining proprietary rights shall have to be treated as full owner of the property in dispute. Accordingly, this appeal has to be allowed on this ground alone. This is not all. We have read the statement of aforementioned Muhammad, the son of Ratta who gave the property to Mst. Bakhtawar in 1935. He categorically stated that the transfer to Mst. Bakhtawar was not as a limited owner but as full owner. This is further supported by the fact that the proprietary dues were paid by Mst. Bakhtawar. The statement of Sanatta alone in the above explained very strong circumstantial elements, goes in favour of Mst. Bakhtawar. Nothing can dilute the fullness of her ownership rights in the property in dispute. In the light of what has been stated above this appeal is allowed. The High ' Court judgment is set aside and the suit filed by the respondents' side stands dismissed. There shall be no order as to costs. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 410 PLJ 1993 SC 410 [Appellate Jurisdiction] Present: dr. nasim hasan shah, CJ, saad saood jan and manzoor HUSSAIN SlAL, JJ BASHIR AHMAD-Petitioner Versus MUHAMMAD SIDDIQUE and another-Respondents Cr.P.S.LA. No. 267-L of 1992, converted into Appeal No.190 of 1993, and accepted on 31.5.1993 (approved for reporting on 22.6.1993) [From judgment/order of Lahore High Court, Multan Bench, dated 31.5.1992, passed in Criminal Revision No. 225 of 1985] Sentence in default of fine- —Sentence ordered in default of payment of fine—Such sentence undergone by petitioner—Whether court could issue warrant for recovery of fine—Question of—It is. clear from judgment of Supreme Court that fines had been imposed upon petitioner/appellant under Section 304 Part-I of PPC and not under Section 544-A of Cr.P.C. and same were to be paid to heirs of deceased, only if realised, by way of compensation-Proviso to Section 386 (l)(b) of Cr.P.C. appears to be attracted to this case, according to which, if convict has already suffered imprisonment in default of fine, court will not issue a warrant for levy of fine-Held: Admittedly, petitioner/appellant had already suffered imprisonment in default of fines, therefore, trial court could not issue a warrant to Collector for realisation of fines-Appeal accepted. [Pp.411&412]A,B&C Mr. Muhammad Sharif Chauhan, Advocate, Supreme Court, and Ch. Mehdl Klian Mehtab, AOR for Petitioner/Appellant. Mr. Saeed Afzal Agarwal, Advocate for Respondents. Date of hearing: 31.5.1993. order • Saad Saood Jan, J.—The petitioner was convicted by the Additional Sessions ' Judge at Khanewal of offences under Section 302 (two counts) and was sentenced to death under each count. He was also directed to pay fine in the sum of Rs. i 2000/- in respect of 'each count. On appeal and reference, the High Court ' maintained his convictions and confirmed the sentences of death and fine, pn further appeal by special leave to this Court his convictions were altered from ( under Section 302 to Section 304, Part-I, and he was sentenced to imprisonment for ..life. Both sentences were ordered to run concurrently and he was given the benefit of the provisions of Section 382-B, Criminal Procedure Code, in the matter of computation of the sentences. However, the sentences of fine were increased to Rs. 20,000/- under each count. In default of the payment of fines he was directed to suffer rigorous imprisonment for a period of six months. It was also directed that in the event the fines were realised these were to be paid to the heirs of the two deceased by way of compensation. The petitioner did not pay the fines and instead, suffered the sentence of imprisonment which was imposed in lieu thereof. Subsequently, the respondent who is the heir of the two deceased moved the Court for the issuance of a warrant to the Collector for the realisation of the fines. The application was allowed and a warrant to the Collector was issued. The petitioner filed a revision petition in the High Court to call in question the legality of the order of the learned trial Court. A learned Single Judge thought that the order of the learned trial Court was perfectly justified and in accordance with law. Accordingly, he dismissed the revision petition. The petitioner seeks leave to appeal from the order of the High Court. 2. After hearing the learned counsel for the parties we convert this petition into appeal. 3. The operative part of the judgment of the Supreme Court reads as follows:- "We_ would convert his conviction from Section 302 read with Section 34 PPC on two counts to Section 304, Part I, PPC, on these counts and substitute the sentence of transportation for life on each count. We further direct that in computing his sentence the period during which he remained in detention should be counted as provided by Section 382-B, Cr.P.C. The sentences are ordered to run concurrently. However the fine on each count is enhanced to Rs. 20000/- or in default to suffer R.I. for six months therefor. The fine if realised shall be paid to the heirs of the deceased." It is clear from this part of the judgment that the fines had been imposed upon the petitioner under Section 304, Part I, and not under Section 544-A, Criminal Procedure Code, and that these were to be paid, only if realised, to the heir of the deceased by way of compensation. Thus, so far as the petitioner is concerned these were sentences of fine and all the provisions relating to the levy and recovery of fines were to apply in giving effect to this part of his sentences. Section 386(1), Criminal Procedure Code, reads as follows • "Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may- (a) -issue a warrant for the levy of the amount by attachment and sale of .any movable property belonging to the offender; (b) issue a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process aginst the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant. The proviso to the sub-section (b) appears to be attracted to the case before us. According to. the proviso if the convict has already suffered the imprisonment which'has been imposed upon him in deault of payment of fine the Court will not issue a warrant for the levy of the fine. Admittedly, the petitioner has already suffered the imprisonment which he was to undergo in the event he did not elect to pay the fines. In the circumstances, by virtue of the bar created by the proviso the trial Court could not issue a warrant to the Collector for the realisation of the fines. I 3. For the reasons stated above we accept this appeal, set aside the orders G of the High Court and the trial Court and withdraw the warrant issued to the " (Collector. (MBC) (Approved for reporting) Appeal accepted.

PLJ 1993 SC 412 PLJ 1993 SC 412 [Appellate Jurisdiction] Present: muhammad afzal zullah, CJ, abdul qadeer chaudhry and saleem akhtar, JJ M/s. LANVIN TRADERS THROUGH ITS PROPRIETORESS-Appellant versus DEPUTY ADMINISTRATOR, EVACUEE TRUST PROPERTY and another- Respondents Civil Appeal No.580-K of 1990, decided on 23.1.1993 (approved for reporting on 9.3.1993) [OB appeal from judgment of High Court of Sindh at Karachi, dated 11.12.1989, passed in C.P. No.D-1081 of 1989.] Martial Law Regulation 51 (as amended by Ordinance VI of 1989)-- —-Paras 6 and 6-A-Evacuee Trust Property-Auction of--Confirmation of~ Refusal of-Challenge to~In an auction as distinguished from open auction, bids can be invited in writing or in sealed cover to be opened on fixed date- This would be a restricted auction-Auction under para 6 of MLR 57 should have been open to public after due publicity so that large number of purchasers might participate in it and compete with each other—Transfers of agricultural properties, subject matter of MLR 57, if disposed of by fraud, misrepresentation, illegally or otherwise, were subject to review and confirmation by authority-Held: In this case, auction was held by inviting bids and no effort was made to hold auction publicly hi open which is not permitted under law-Held further: Case is remanded to High Court to determine present market value of property and if appellant is prepared to pay that price, leasehold rights be transferred to it. [Pp.415&416]A,B&C Syed Zaki Muhammad, Advocate, and Mr. Shabbir Ghaury, A.O.R. (absent) for Appellant. Ch. Fazal~e-Hussain, A.O.R. for Respondent No.l. Nemo for Respondent No.2. . .' Date of hearing: 23.1.1993. judgment Saleem Akhtar, J.--The appellant by the leave of the Court has challenged the judgment of the High Court whereby its Constitution Petition filed against the order of the Tribunal constituted under Martial Law Regulation 57 (Amendment) Ordinance. 1989, was dismissed and the transaction of lease of land claimed by it was not confirmed. 2. The dispute relates to land bearing survey No.54 measuring 12 acres and 4 ghuhtas situated in Deh Surjani, Taluka and District Karachi. It is an evacuee trust land and was managed and administered by the Evacuee Trust Property Board. The land was first leased out to some other party particulars of which have not been mentioned in the appeal. However, the same was taken over under Martial Law Regulation 57 and was disposed of under para 6 of the Regulation. Before disposal respondent No.l advertised in daily Jang Karachi dated 8.2.1986 and interested parties were asked to submit their offers for 99 years' lease. The appellant offered a bid at the rate of Rs.1,62,500.00 per acre and submitted a pay order of Rs.39,325.00, equivalent to 2 per cent of the total consideration of the land. The appellant's offer was highest.amongst about 10 other participants and therefore it seems to have been accepted and the appellant was called upon through letter dated 27.2.1986 to deposit 25 per cent of the total consideration. Thd apellant complied with the request and deposited a pay order for Rs.4,53,253.00 in favour of respondent No.l. The matter was not finalised and remained the subject-matter of further negotiations and meetings. Ultimately, it was decided on 29.9.1988 that the appellant shall pay 10 per cent over and above the total consideration which was accepted by it. Respondent No.l did not grant lease and it seems that the matter remained without a final decision till Martial Law Regulation. 57 (Amendment) Ordinance, 1989, was promulgated on 27.5.1989. As required by para 6-A of Martial Law Regulation 57 as amended, the appellant filed application for confirmation of transaction which was registered as application No.34 of 1989. The Tribunal after hearing the parties dismissed the application mainly on the ground that the land was not disposed of through open auction as required by para 6 of Martial Law Regulation 57, but by inviting bids and further that the disposal was not in small lots. The appellant filed Constitution Petition challenging the order of the Tribunal, but it was dismissed by the impugned judgment. 3. Leave was granted to consider whether disposal by inviting bids from all persons amounted to an open auction and whether the appellant had acquired any vested right in the land in dispute. 4. We have heard Mr. Syed Zaki Muhammad, learned counsel for the appellant and Ch. Fazal-e-Hussain, learned Advocate-on-Record for respondent No.l. The learned counsel for the appellant contended that the bid was invited by advertisement in a newspaper in which everyone was entitled to offer for the land and therefore it will amount to an open auction. The word "auction", as defined by various dictionaries means as follows:-- Ttie Oxford English Dictionary: "A public sale in which each bidder offers an increase upon the price offered by the preceding, the article put up being sold to the highst bidder." Chambers Twentieth Century Dictionary: "A public sale at which goods are sold to the highest bidder." Black's Law Dictionary: "An auction is a public sale of property to the highest bidder by one licensed and authorized for that purpose." Ballentine's Law Dictionary: "A public sale of property to the highest bidder." Wliarton's Law Dictionary: "Auction signifies generally an increasing, an enhancement, and hence is applied to a public sale of property usually conducted by biddings, which augment the price." In Corpus Juris Secundum 'auction' has been defined as follows:-- "An auction is a public sale of property to the bidder, by one licensed and authorised for that purpose. The main purpose of auction sales is to obtain the best financial returns for the owner of the property sold; and , they are based on the purpose and policy of obtaining the worth of property by free and fair competition among the bidders; and hence competition among a number of bidders is a necessary element." "A Sale by consecutive bidding intended to reach the highest price of the article by exciting competition for it."Auction is a recognized mode of sale of property originated with the Romans "in the disposition of military spoils" conducted "under the spear" which was stuck in the ground on such occasions. With the passage of time all such practices became obsolete but auction continued to be an accepted mode of sale. It attained statutory recognition as provided in Section 64 of the Sales of Goods Act, Order XXI Rule 65 CPC and many other statutes. Section 58(2) of the U.K. 's Sales of Goods Act, 1893 provides for sale by auction. An open auction means a public sale where bidders, have the opportunity to compete with each other and raise their bid before acceptance. In such auction there is an element of open competition between the bidders where one knows the bid offered by the other and has the opportunity to raise it and succeed to purchase as a highest bidder on acceptance. A bid is an offer to purchase the property put to auction. It can be made in any manner which signifies the intention to purchase at a particular price. As written in Corpus Juris Secundwn "it may be made orally, as by words uttered aloud in.the hearing of the by slander or spoken privately to the auctioneer, or by a. wink or a nod or by -writing in words or figures or by letters. Secret signs between the bidder and the auctioneer should not be allowed " In open public auction the bid may be in any recognized or permitted manner in the presence and knowledge of all present at the auction. In an auction as distinguished from open auction bids can be invited in writing or. in sealed cover to be opend on a fixed date. This would be a restricted auction. Such mode of auction unless prohibited by law can be adopted by the owner of the property. Mere fact that holding of such auction or inviting bids in cover has been publicised will not make it an open auction. 5. In the present case, considering the statutes right from the Settlement Laws till their repeal, the promulgation of MLR 57 and its amendment by Ordinance VI of 1989 suggest that the auction under para 6 of MLR 57 should have been open to public after due publicity so that large number of purchasers may participate in it and compete with each other. It may be noted that the transfer of agricultural properties which were subject-matter of MLR 57 if disposed of by fraud, misrepresentation, illegally or otherwise were subject to review and confirmation by the authority. In this process the disposal of scheduled properties was examined and wherever it was not confirmed it was made subject to sale under para 6. The entire exercise was to root out transfers made illegally 1 or for any other reasons mentioned in the Regulation. The amendment however seems to cover even those lands which have been transferred under para 6. It seems that the legislature was not satisfied with the disposal of the properties under para 6 although it had suffered scrutiny at one stage. Therefore, under para 6-A the properties transferred in any manner or sale under the Regulation were declared to have any effect or create any right or remedy unless it was confirmed by a Tribunal appointed by the Federal Government. Applications for confirmation of such transactions were to be filed before the Tribunal within 30 days of the commencement of Ordinance VI of 1989. The Tribunal was required to complete its inquiry within three months and it was authorized under clause (jv) of Para 6-A to reject the application if in its opinion the transaction, contract, lease, right or transfer was not entered into, granted, created or effected in accordance with para 6. Therefore, by this amending Ordinance another scrutiny of all such transactions, rights and agreements were required by a higher Tribunal. This was done with a view to purify the transactions which may have been obtained illegally or by corrupt practices. In the present case the uction was held by inviting bids and no effort was made to hold the auction publicly in open, which is not permitted under law. 6. Mr. Fazal-e-Hussain Chaudhry, learned counsel for the respondent has contended that the disputed property is a valuable property and it has been sold at a throw away price. Be that as it may, he still makes an offer that if the appellant is prepared to pay the present market price of the property the leasehold rights may be transferred to it on payment of such price. The offer made by the learned counsel for the respondent is fair and just. In the circumstances, we remand the case to the High Court to determine the present market value of the property and if the appellant is prepared to pay that price then after adjustment of the amount already paid by it, the leasehold rights may be transferred to it. However, in case the appellant is not prepared to pay the present market price as determined by the High Court, the respondents would be at liberty to dispose it of according to law. (MBC) (Approved for reporting) Orders accordingly.

PLJ 1993 SC 416 PLJ 1993 SC 416 [Appellate Jurisdiction] Present: DR. NASIM HASAN SHAH, AJMAL MIAN AND SAJJAD ALI SHAH, JJ BADARUDDIN-Petitioner versus Mehr AHMAD RAZA, ADDITIONAL SESSIONS JUDGE, JHANG, and 6 others—Respondents Civil Petition No.204-L of 1992, dismissed on 5.4.1993 [On appeal from judgment of Lahore High Court, dated 11.1.1992, passed in Writ Petition No.3427 of 1990.] (i) Criminal Procedure Code, 1898 (V of 1898)-- —S.249-A~Offence under Sections 467, 468, 420, 406, 109/34 PPC-Acquittal of accused-Challenge to~Perusal of Section 249-A clearly shows that trial Magistrate is given power of acquitting an accused person at any stage of case, if charge is groundless or there is no probability of accused being convicted of any offence-Such or< - r can be passed even before recording of evidence if Court is satisfied that 10 useful purpose would be served by proceeding further in matter-In cases o breach of contract, both remedies on criminal as well as civil side, are available, but guidelines in case law show that civil Courts be given preference ad allowed to decide such disputed facts—Held: If trial Court is given power to acquit at any stage of proceedings, then it can be said that order of acquittal can be passed by Court without recording evidence. [Pp.418&419]A&b 1972 P.Cr.LJ. 1130 and 1989 P.Cr.LJ. 1883 rel. (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S.439 read v. ah Constitution of Pakistan, 1973, Art.l99-Offence under Sections 467, 68, 420, 406, 109/34 PPC-Acquittal of accused-Challenge to- Whether wri petition was maintainable—Question of—Powers of High Court for exercise of revisional jurisdiction under Section 439 Cr.P.C. are wider in . Scope thar powers in writ jurisdiction—Both High Court and Sessions Court have conci.rrent revisional jurisdiction but in normal course, it is allowed to be exerciser by lower forum first-Held: If there is finding by competent Court on revisioral side, it has attained finality and writ petition would be nonmainU inable—Held further: There is no flaw or legal infirmity in judgment of High Court to which no exception can be taken—Petition dismissed. [P.420]C&D PLJ 1981 SC 895 and 1990 SCMR 1309 rel. Mr. Ashiq Hussain Malik. Advocate. Supreme Court, and Syed Abul Aasim Jafri, A.O.R. for Petitioner. Nemo for Respondents. Date of hearing: 5.4.1993. order Sajjad Ali Shah, J.~At the very out-set we would like to point out that respondent No.l herein is learned Additional Sessions Judge, who had disposed of Revision application and that judgment was impugned in the Writ Petition filed in the High Court. If at all it was considered fit and proper to implead him as party, inspite of the fact that he is proforma party, then good and scrupulous draftsmanship demands that he should not have been impleaded by name but by designation or office and secondly in all fairness such proforma respondent should have been mentioned at the end after naming of necessary respondents who contest proceedings as active parties. It would be appreciated if such lapses are avoided in future. 2. By this petition leave is sought from judgment and order of the High Court at Lahore, whereby Writ-Petition is dismissed in which judgment of learned Additional Sessions Judge, Jhang allowing Revision by reversing the order of the trial Magistrate and allowing application under Section 249-A Cr.P.C. was challenged. It is urged oa behalf of the petitioner, who is complainant in the criminal case that order allowing application under Section 249-A Cr.P.C. was passed by the RevisionaS Court rather pre-maturely because in the trial Court stage had not reached for recording of evidence. In the circumstances trial Court had acted properly by rejecting application under Section 249-A Cr.P.C., which was allowed by Revisonal Court. 3. Briefly stated the relevant facts giving rise to this petition are that petitioner entered into a transaction for sale of his land in Tehsil Sumandari with respondent No.2 Noor Muhammad and others for Rs.1,50,000/-. He received Rs.85,000/- as earnest money and the purchasers agreed to transfer their land to Mm situated in Village Khana Bhati District Jhang in lieu of balance money. In thai connection an Exchange Deed dated 22.4.1979 was executed between the parties. Petitioner claims that respondents backed out and he revoked Power of Attorney issued by him in favour of Abdul Karim by proclamation in newspaper dated 17.3.1986 but inspite of that Abdul Karim transferred land to other respondents through Mutation dated 29,12.1986. 4. In view of facts and circumstances slated above, petitioner filed F.I.R. for offences under Sections 46^, 468, 420, 406, 109/34 PPC, in consequence of which criminal case was registered in which respondents appeared and subsequently filed application under Section 249-A Cr.P.C. on the ground that no criminal case was made out against them inasmuch as the' transaction complained of, if at all, disclosed a breach of contract which was actionable on the civil side. Learned Magistrate dismissed application on the short ground that on the day of disputed mutation, Power of Attorney stood cancelled, hence no ground was made out for action under Section 249-A Cr.P.C. Against this order respondents filed Revision application in the Sessions Court. 5. Learned Additional Sessions Judge after hearing counsel for both the parties passed a detailed judgment with discussion of case law on relevant points. He concluded that when transaction is civil in nature and in substance breach of contract is alleged, then remedy lies in the Civil Court and not in the Criminal Court on the charges of cheating, forgery or criminal breach ul trust. In support of the proposition reliance is placed on a number of rulings including 1972 P.Cr.L.J. 1130 (Jamot Ghulam Muhammad and others v. The State and another) and PLD 1987 Lahore 116 (Shaukat Ali v. Tfie State). Revisional Court has also considered in detail legality of revocation of Power of Attorney in view of case law and peculiar facts of this case and remarked that it had nexus with Exchange Deed and disputed facts surrounding these documents could be best sorted out in the Civil Court and finally feeling satisfied allowed application under Section 249-A Cr.P.C. 6. High Court has dismissed writ petition mainly on two grounds. Firstly that Revisional Court has passed proper and legal order by allowing application under Section 249-A Cr.P.C. in view of case law and secondly writ petition is not maintainable particularly when on the same point there is final order passed by a Court of competent jurisdiction on revisiona! side. On the first ground learned counsel for the petitioner argued before us vehemently that opportunity should have been given to produce evidence in support of allegations of criminal nature which was not done. Perusal of Section 249-A Cr.P.C. clearly shows that trial Magistrate is given power of acquitting an accused person at any stage of the case, if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that charge is groundless or that there is no probability of the accused be convicted of any offence. Use of words "at any stage of the case" indicates intention that such order can be passed even before recording of evience, if facts of the case are such and the Court is satisfied that no useful purpose would be served by proceeding further in the matter. There is no dispute about the fact that ingredients of criminal offences such as, 420, 406, 467, 468 and other cognate offences are similar as would appear in most cases of breach of contract. No doubt in such cases both remedies on criminal as well as civil sides are available and can be pressed into service but guidelines in the case law show that civil Courts be given preference and allowed to decide such disputed facts. In such circumstances it is the duty of the criminal Court to act with circumspection and exercise power with utmost care and caution before it is pursuaded to employ its pocess for compelling attendance. In support reference can be made to the cases reported in 1972 P.Cr.P.L. 1130 (Jamot Ghulam Muhammad and others v. The State and another) and 1989 P.Cr.L.J. 1883 (KJwn alias Klwnu and others v. Tlie Slate). • 7. In any case as stated above, facts in each criminal case are different from the other and if the trial Court is given power to acquit at any stage of the proceedings if satisfied, then it can be said that order of acquittal can be passed by the Court without recording of evidence provided the Court is satisfied that peculiar facts of that case justify such order. In the instant case this aspect has been discussed in detail by the Revisional Court and from its judgment portion of the relevant paragraph is reproduced as under:— "He, however, revoked the general power of attorney through a proclamation in a Newspaper which has small circulation. It is not necessary that the petitioner and others may have come to know regarding the cancellation of general power of attorney. Even otherwise, he himself could dispose of the land as there was an exchange deed in his favour. It appears that he wanted io dispose of the land at a higher price through the help of the petitioner and others. Now, if the petitioner and others disposed of the land after the cancellation of the general power of attorney, it does not show that the petitioner and others intended to commit any fraud. The disposal was made under general power of attorney and the complainant could claim the price from the petitioner and others. Moreoever, there being an exchange deed, the complainant could come to the Civil Court for the vindication of the grievance." 8. Second ground given by the High Court is that writ will no lie if final order is passed by the revisional Court. There is no dispute about the fact that powers of the High Court for exercise of revision il jurisdiction under Section 439 Cr.P.C. are wider in scope than powers in the writ jurisdiction. By amendment in the law now Sessions Court and High Court have concurrent revisional jurisdiction wh'ich is allowed in the normal course to be exercised first by lower forum but that does not decrease the scope of jurisdiction as mentioned above. In such circumstances it is said that if there is finding by the Court of competent jurisdiction on the revisional side then it has attained finality. On the same question writ petition would be non-maintainable because otherwise it would amount to allowing question finally decided in one set of forums to be reagitated afresh in another set of forums and that way there will be no end to the finality. In support of the proposition reference can be made to the cases of Abdul Rehman Bajwa v. Sultan and others (PLJ 1981 Supreme Court 895) and Javaid Iqbal v. Muhammad Din and others (1990 S.C.M.R. 1309). 9. For the facts and reasons stated above, we are unable to find any flaw or 0 legal infirmity in the judgment of the High Court to which no exception can be I taken. Resultantly, leave is refused and petition is dismissed as having no merits. (MBG) (Approved for reporting) Petition dismissed.

PLJ 1993 SC 420 PLJ 1993 SC 420 [Appellate Jurisdiction] Present: DR. NASIM HASAN SHAH AND SALEEM AKHTAR, JJ Dr. ABDUL AZIZ KHAN BABAR-Petitioner versus SALAHUDDIN KHAN and another-Respondents Cr. P.LA. No. 245-L of 1992,decided on 11.4.1993 . [On appeal from judgment of Lahore High Court, dated 30.6.1992, passed in Criminal Misc. No. 373/M of 1989] Restoration-- —Criminal appeal—Restoration of—Application for—Dismissal of application for non-prosecution-Challenge to-Contention that no notice of hearing on 30.6.1992 was served on petitioner who was appearing in person and that in cause list, names not being correctly printed, sufficient ground had been made for. restoration of appeal-It is further contended that criminal appeal cannot be dismissed'for default and even in absence of appellant, it should be decided on merits—Held: Questions need consideration—Leave granted. [P.422JA PLD 1970 SC 177 and 1986 SCMR 59 ref. Ch. Muhammad Bakhsh, Advocate, Supreme Court, and Mr. Tanvir Ahmad, AOR for Petitioner. Respondents: Not represented. Date of hearing: 11.4.1993. order Saleem Akhtar, J.--The petitioner seeks leave to appeal against the order of the learned Judge in Chambers dated 30.6.1992 whereby his application seeking restoration of the dismissal of his petition for special leave to appeal was dismissed. 2. The petitioner had filed two separate criminal complaints against the respondents and others including public servants under Sections 420, 467, 468 and 471/34 PPC. The main allegation against the accused was that they have committed forgery and preparation of forged documents by deceiving petitioner's wife and tampering with Government records in the L.D.A. and Excise and Taxation Department, Lahore, in respect of house No. 16-E-l, Gulberg III, Lahore, belonging to and in possession of the petitioner's wife. These complaints were filed on 27.9.1978 and 4.10.1978. The learned Magistrate sent for inquiry to the police under Section 202 Cr.P.C. after which he took cognizance of the matter. The case was then transferred to another Magistrate before whom respondent No. 1 moved an application under Section'249-A Cr.P.C. alleging that the offences under Sections 420, 467, 468 and 471 PPC were scheduled offences under Pakistan Criminal Law (Amendment) Act, 1958, and therefore under Section 5 of that Act were exclusively triable by the Special Judge and not by a Magistrate. He prayed for acquittal under Section 249-A Cr.P.C. The learned Magistrate by his order dated 29.7.1980 holding that the offences were exclusively triable by the Special Judge and he did not have jurisdiction to adjudicate in the matter, ordered acquittal of the accused persons under Section 249-A Cr.P.C. as the complaint was not maintainable. The petitioner filed revision application against the order before the Sessions Judge, Lahore, in which a preliminary objection was taken that an order of acquittal having been passed in private complaint cases, revision petition was not competent as under Section 439(5) Cr.P.C. where an appeal lies under the Code .of Criminal Procedure, and no appeal is brought, revision application will not be, maintainable at the instance of the party who could have appealed. The learned Sessions Judge held that although the Magistrate had no jurisdiction, he passed order of acquittal which was appealable under Section 417 Cr.P.C. and therefore .the revision petition was not competent. The petitioner filed a Constitution Petition against this order which was treated as an appeal by the High Court. This appeal was dismissed for non-prosecution by order dated 29.9.1984. Tbe petitioner filed application for restoration of the appeal pleading that in the year 1983 he went abroad and came back to Pakistan in the year 1987 and waited for fixation of the aforesaid appeal, but as no notice was received by the petitioner till 21.3.1989, he engaged Mr. Chaudhry Muhammald Bakhsh Advocate, who on inspection informed that the appeal had been dismissed in default on 29.9,1984. This application was dismissed by the impugneld order dated 30.6.1992. 3. The learned counsel for the petitioner has contended that no notice for hearing on 30.6.1992 was served on the petitioner who was appearing in person. The learned counsel with reference to the cause list contended that the names we're not correctly printed and therefore in these circumstances sufficient ground had been made for restoration of the appeal. The learned counsel further contended that a criminal appeal cannot be dismissed for default and even in the absence of the appellant it should be decided on merits. The learned counsel has relied on Muhammad Ashiq Faqir v. State (PLD 1970 S.C, 177) and Muhammad Bakhsh v. State (1986 SCMR 59). We'grant leave to consider these questions. (MBC) (Approved for reporting) Leave granted.

PLJ 1993 SC 422 PLJ 1993 SC 422 [Appellate Jurisdiction] Present: ABDUL QADEER CHAUDHRY AND SAIDUZZAMAN SlDDTQUI, JJ MUHAMMAD HUSSAIN and 6 others-Petitioners Versus Malik ALLAH DITTA and 4 others-Respondents Civil Petition No.635-L of 1992, dismissed on 29.3.1993 (approved for reporting on 5.4.1993) [On appeal from judgment of Lahore High Court, dated 11.5.1992/26.5.1992, passed in Civil Revision No.642 of 1982.] Land Reforms Regulation, 1972 (MLR 115)-- —Paras 25 & 26-Pre-emption-Suit for-Decree passed in-Challenge to- Whether Civil Court had juiisdiction to interfere with orders passed by revenue authorities and declare them without lawful authority-Question of- Combined effect of paragraphs 25 and 26 of MLR 115 is that jurisdiction to try a suit for pre-emption based on right of tenancy, vests exclusively with Collector-Decision of revenue authorities on any matter in such proceedings under MLR 115, cannot be brought under challenge in a civil court-Held: Learned Judge in Chamber was right in holding that Civil Judge and District Judge had no jurisdiction to examine validity of pre-emption decree passed in favour of respondent No.l. by Collector and confirmed byAdditional Commissioner in appeal—Petition dismissed. [Pp.424&425]A&B ChAkhtar AH, Advocate, Supreme Court, and Ch. Mehdi Khan Mehtab, A.O.R. for Petitioners. Mr.Khuda Dad Klian Burki, Advocate, Supreme Court, and Ch. Qamaruddin Khan, A.O.R. for Respondents. Date of hearing: 29.3.1993. judgment Saiduzzaman Siddiqui, J.-Tbe petitioners are seeking leave to appeal against the order of a learned Judge in Chambers of Lahore High Court dated 26.5.1992 whereby the Civil Revision Application filed by respondent No.l against the two concurrent judgments of the Courts below, arising from a declaratory suit instituted by the petitioners, was allowed and the judgments and decrees passed by the two Courts below were set aside and the suit instituted by the petitioners was dismissed as not maintainable. The relevant facts of the case are that respondents 1 and 2 jointly filed a suit for pre-emption against petitioner No.l and predecessors of petitioners 2 to 7 in respect.of sale of land measuring 38 Kanals and 14 marlas alleging that they had superior right of pre-emption, being tenant of the land. While the suit instituted by respondents 1 and 2 was pending, the proceedings were transferred to the Assistant Commissioner/Collector Multan for adjudication. The Assistant Commissioner vide his Order dated 23.11.1976 decreed the claim of respondent No.l for pre-emption to the extent of 12 kanals out of 38 kanals 14 marlas while the claim of respondent No.2 was rejected as he was not found tenant of the suit land. The appeal preferred by the petitioners against the order of Assistant Commissioner before Additional Commissioner (Revenue) Multan , was dismissed on 2.4.1977. The petitioners instead of taking further proceedings against the order .of Additional Commissioner (Revenue) Multan , in the hierarchy of revenue authorities, instituted a declaratory suit in the Court of Civil Judge, Multan , challenging the decision given by the Assistant Commissioner and Additional Commissioner (R) Multan . In the aforesaid suit they claimed that respondent No.l was not the tenant of the suit land. The suit was resisted by respondent No.l. The Civil Judge by judgment dated 22.6.1981 decreed the suit and declared the orders passed by revenue authorities as without lawful authority. Respondent No.l filed an appeal against the judgment and decree of Civil Judge before District Judge, Multan, who modified the judgment of the Civil Judge to the extent that he granted pre-emption decree to the extent of only 4 kanals out of 12 kanals in favour of respondent No.l, Respondent No.l then filed a Civil Revision Application in the Lahore High Court which was accepted by a learned Judge in Chambers by the impugned judgment dated 26.5.1992. The learned Judge in Chambers set aside the judgments and decrees passed by the Civil Judge as well as District Judge on the ground that the jurisdiction of Civil Court was barred under paragraphs 25 and 26 of the Land Reforms Regulations 1972. In seeking leave to appeal, the learned counsel for the petitioners contended before us that the revenue authorities while deciding the claim of pre-emption have committed factual error and as such the Civil Court, under Section 9 of the Code.of Civil Procedure, was entitled to interfere with the orders passed by revenue authorities and declare them as without lawful authority and of no legal effect. The learned counsel, accordingly, contended that the order of the learned Judge in Chambers, interfering with the concurrent judgments of two Courts below, is not sustainable in law. The contention raised by the learned counsel for the petitioners has no force. Relevant portions of paragraphs 25 and 26 of MLR 115 read as follows:— Para 25. "(5) All the suits for enforcing the right of pre-emption in respect of land comprised in a tenancy shall be exclusively entertained, heard and decided by the Collector within whose jurisdiction the land in respect of which the right of pre-emption has been claimed is situated, and all such suits which may be pending in any court immediately before the commencement of the Land Reforms (Amendment) Ordinance, 1976, shall, on such commencement, stand transferred to the Collector concerned. (6), Any person aggrieved by an order passed by a Collector under the preceding sub-paragraph may, within thirty days of such order, present an appeal to Commissioner. • (7) The Board of Revenue may at any time of its own motion or otherwise call for the record of any case or proceedings under this paragraph which is pending or in which a Collector or Commissioner has passed an order, for the purpose of satisfying itself as to the correctness, legality or propriety of such proceedings or order, and may pass such order in relation thereto as it thinks fit:Provided that no order shall be passed under this sub-paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard: Provided further that the record of any case or proceedings in , which a Collector or Commissioner has passed an order shall not be called for under this sub paragraph on the application of any aggrieved person made after the expiration of thirty days from the date of such order. (8) For the purposes of this paragraph a Collector, a Commissioner and the Board of Revenue shall be deemed to be a Civil Court and shall have all powers of a Civil Court under any law for the time being in force and the final order passed in such suits shall be deemed to be a decree of a Civil Court and shall be executed as such. (9) In computing the limitation provided for in sub paragraph (6) or sub paragraph (7), the provisions of Section 5 and Section 12 of the Limitation Act, 1908 (IX of 1908), shall apply. Explanation. In this paragraph "Collector", "Commissioner" and "Board of Revenue" have the meaning assigned to them in the West Pakistan Land Revenue Act, 1967 (W.P. Act XVII of 1967)." Para 26. "26. Bar of Jurisdiction.--(l) No provision of this Regulation or of any rules or orders made thereunder shall be called hi question in any Court, including the High Court and the Supreme Court, or before any authority other than an authority appointed under this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission is empowered to determine. (2) No such Court or authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceeding before the Commission or before any officer exercising any power or discharging any function under this Regulation or the Rules or orders made thereunder, or in relation to anything done or intended to be done by or at the instance of the Commission or such officer." The combined effect of the above provisions is that the jurisdiction to try a suit for pre-emption based on the right of tenancy vests exclusively with the Collector within whose jurisdiction the pre-empted land is situated. The decision of Revenue Authorities on any matter in such proceedings, which the Revenue Authorities are competent to decide under the provisions of MLR 115, cannot be brought under challenge before a Civil Court in a Civil Suit in view of the provision of paragraph 26 of MLR 115. The learned Judge in Chambers was, therefore, right in holding that the Civil Judge and'the District Judge had no jurisdiction to examine the validity of trie pre-emption decree passed in favour of respondent No.l by the Collector and confirmed in appeal by the Additional Commissioner (Revenue) in exercise of appellate jurisdiction under para 25 of MLR 115. There is no merit in this petition, which is dismissed accordingly. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 SC 425 PLJ 1993 SC 425 [Shariat Appellate Jurisdiction] Present: ajmal mian, pir muhammad karam shah and maulana muhammad taqi usmani, JJ AMANULLAH-Appellant versus THE STATE-Respondent Criminal Appeal No. 24 (Shariat) of 1991 out of Jail Petition No.12 (Shariat) of 1991, decided on 30.1.1993 (approved for reporting on 26.5.1993) [On appeal from judgment and order of Federal Shariat Court, dated 22.1.1991, passed in Jail Criminal Appeal No. 188/1 of 1990] Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- —S. 11 read with Section 16~Abduction~Offence of-Conviction for- Challenge to-Whether offence committed by appellant falls under Section 11 or Section 16 of Ordinance-Question of-Kidnapping applies only if victim is minor but in this case, victim is a married lady-According to definition of abduction, there should be an element of force on part of accused or use of deceitful means to induce a person, but neither of two elements is proved on record—In absence of an element of force or compulsion, charge of abduction under Section 11 of Ordinance is not established against appellant--Words used in Section 16 of Ordinance, do not require any force or compulsion nor it is necessary that victim should be minor—Held: Offence committed by appellant, falls under Section 16 of Ordinance-Conviction converted from Section 11 to Section 16 of Ordinance. [Pp.427,428&429]A,B,C,D,E,F&G PLJ 1988 SC 552 rd. Mr. M. Ibrahim Satti, Advocate, Supreme Court for Appellant. Advocate General, NWFP for Respondent. Date of hearing: 30.1.1993. judgment Maulana Muhammad Taqi Usmani, Member .--The appellant was convicted by the Additional Sessions Judge Mardan, under Section 326 PPC and was sentenced to 10 years R.I. and a fine of Rs. 5,000/- or in default 6 months simple imprisonment. He was also convicted under Section 11 of the Offence of Zina (Enforcement. of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and was sentenced to Life Imprisonment and 20 stripes and a fine of Rs. 5,000'/- or six months simple imprisonment'in case of default. The Federal Shariat Court vide its judgment dated 22.1.1991 dismissed his appeal. However the benefit of Section 382-B Cr.P.C. was extended to him. Now he has preferred this appeal, through leave of this Court, against the aforesaid judgment of the Federal Shariat Court. 2. The allegation against the appellant is that on 4.4.1987 he after inflicting grievous hurt to his cousin Ashraf Khan abducted his wife Mst, Bano from the house of her husband. The report to this effect was lodged by Zewar Khan, brother of the said Ashraf Khan in the Police Station Takhat Bhai, district Mardan vide FIR Ex.P.A. Leave was granted in this case only to examine whether the offence committed by the appellant falls under Section 11 or under Section 16 of the Ordinance. We, therefore, do not need to go into the veracity of the evidence produced by the prosecution and we shall confine ourselves to the nature of the offence committed by the appellant. 3. It is mentioned in the FIR that c$>>tf;\,£.)\J(£ r s lf ,,MHtfttj>\f\f)JJ>cJr' " "

f the accused or the use of deceiftul means to induce a person. Neither of the two elements are proved on the record. Mst. Bano being a consenting party, the appellant neither used force against her, nor is there any indication that he has used some deceitful means to induce her to go from her house. In the absence of an element of force or compulsion on the part of the appellant, the charge of abduction under Section 11 is not established against him. 5. On the other hand Section 16 of the Ordinance reads as follows:- "16. Enticing or taking away or detaining with criminal intent a woman.- Whoever takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any woman shall be punished with imprisonment of either description for a term which may extend to seven years and with whipping not exceeding thirty stripes, and shall also be liable to fine."The words used in this Section do not require any force or compulsion on the part of the accused nor is it necessary for the establishment of an offence under this Section that a victim be a minor. Therefore the offence committed by the appellant in fact falls under Section 16 and not under Section 11. 6. The learned counsel for the appellant submitted that even the provisions of Section 16 are not attracted to the present case, because Mst. Bano had accompanied the appellant with her free will, and the provisions of Section 16 do not apply where the woman is a consenting party. The question whether or not an offence under Section 16 is made out where a woman accompanies an accused ft: with her consent was examined by this Court in the case of Amanullah vs. Hie State (Reported in PLJ 1988 SC 552) and it was held therein that "taking away a woman with intent to commit illicit sexual intercourse with her" is sufficient to form an offence under this Section, even if it is done with the consent of that woman or on her own request. • 7. In this view of the matter, we are fully convinced that the offence under Section 16 has been fully proved against the appellant. We, therefore, convert his conviction from Section 11 to one under Section 16 of the Ordinance and sentence him to 7 years R.I. with 30 stripes and a fine of Rs. 10,000/- to be paid, if - recovered, to the heirs of Muhammad Ashraf Khan, the husband of Mst. Bano, who was murdered during the trial. In case the appellant is unable to pay fine, he shall further undergo simple imprisonment for a term of one year. He shall also get the benefit of Section 382-B Cr.P C His conviction and sentence under Section 326 PPC shall remain intact. The setence of imprisonment under both counts shall run concurrently. With this modification this appeal is dismissed. (MBC) (Approved for reporting) Conviction altered.

PLJ 1993 SC 429 PLJ 1993 SC 429 [Appellate Jurisdiction] Present: dr. nasim hasan shah and saleem akhtar, JJ Ch. MANZOOR ELAHI-Petitioner versus REGISTRAR, CO-OPERATIVE SOCIETIES, and 3 others-Respondents C.P.LA. No.258-L of 1992. dismissed on 29.4.1993 (approved for reporting on 5.5.1993). [On appeal from judgment of Lahore High Court, dated 11.1.1992, passed in Writ Petition No.1222 of 1992.] (i) Co-operative Societies and Co-operative Banks (Repayment of Loans) Ordinance, 1966 (W.P.Ordinance XIV of 1966)-- —S.9-A--Loan--Recovery of-Finding of Deputy Registrar that petitioner and Respondents 3 and- 4 were not liable for payment—In revision petition, Registrar held them jointly liable for payment-order of Registrar upheld in writ petition-Challenge to-Contention that Registrar could exercise suo motu revisional jurisdiction and not at behest of any party—Section 9-A(l) empowers Government to suo mom call for and examine record of any proceedings at any time for satisfying itself as to legality or propriety of decision or award made by Registrar-Sub-section (2) of Section 9-A gives such powers to Registrar if decision or award is made by Deputy or Assistant Registrar-Held: There is no restriction placed in Section 9-A(2) that such power can be exercised suo motu only—Held further: Registrar can act on a petition made by any party. [Pp.431&432]A (ii) Co-operative Societies and Co-oprative Banks (Repayment of Loans) Ordinance, 1966 (W.P.Ord. XIV of 1966)- -—S.9-A-Loan-Recovery of-Finding of Deputy Registrar that petitioner and respondents 3 and 4 were not liable for payment-In revision petition, Registrar held them jointly liable for payment—Order of Registrar upheld in writ petition—Challenge to—Registrar had taken pains to examine documents produced in matter and fixed liability for payment on petitioner and respondent 3 & 4—Held: High Court was justified in remarking that it was a case of appreciation of evidence and not a case of misreading or non-reading of evidence on record-Leave refused. [P.432JB Syed Farooq Hasan Naqvi, Advocate, and Mr. Mahmood A. Qureshi, A.O.R. for Petitioner. Respondents: Not represented. Date of hearing: 11.4.1993. order Saleem Akhtar, J.~The petitioner seeks leave to appeal against the judgment of the learned Judges of the Division Bench of the High Court whereby his Constitution Petition was dismissed and order passed by respondent No.l was upheld. 2. Briefly, the facts are that respondent No,2 laid information before the Registrar of Cooperative Societies under Section 54 of the West Pakistan Cooperative Societies and Cooperative Banks (Repayment of Loans) Ordinance, 1966 (hereinafter called the Ordinance) stating that M/s Pak-Japan Industrial Corporation comprising of M/s Nichimen Company (Pakistan) Ltd., respondent NoA Ch. Manzoor Elahi petitioner, and Sh. Inayat Hussain. respondent No.3 being its partners were liable to pay sum of Rs.4,37,831.00 and interest accrued thereon. Notice under Section 5 of the Ordinance was issued to them and in reply the petitioner and respondents No.3 and 4 denied the liability. According to them the factory of Mandi Bahauddin which had obtained the loan had been leased out to one Talemand w.e.f. 1.7.1959 to 30.6.1961. An application was also made for action against the petitioner and respondents No.3 and 4 to refer the case to Martial Law Authorities under Martial Law Order No.18. Respondent No.3 filed application before the Registrar, Cooperative Societies, Lahore, claiming that the liability of the petitioner and respondents No.3 and 4 should be determined first before referring the matter to the Summary Military Court. This application was dismissed on 23.2.1970 holding that he had no jurisdiction as the matter was pending before the Martial Law Authorities. It seems that the Martial Law Authorities issued directions to the Registrar to determine the liability before 30.6.1970 and proceed accordingly. The Deputy Registrar by his order dated 25.6.1970 held that petitioner and respondents No.3 and 4 were not liable. He fixed the liability on Talemand and further ordered that he and the Bank officials should be made liable to compensate the Bank according to law. 3. In the year 1972 by West Pakistan Ordinance (III of 1972) Section 9-A was added to the Ordinance which reads as follows:--9-A. Revision.--(l) When any decision or award is made by the Registrar, the Government may, at any time, suo motu, call for and examine the record of any inquiry or proceeding relating thereto for the purpose of satisfying itself as to the legality or propriety of such decision or award. (2) When any decision or award is made by a Deputy Registrar exercising the powers of the Registrar or by an Assistant Registrar, the Registrar may call for and examine the record of any inquiry or proceeding relating thereto for the purpose of satisfying himself as to the legality or propriety of such decision or award. (3) If, after examining the aforesaid record, the Government or the Registrar is of the opinion that any decision or award should be modified, annulled or reversed, the Government or the Registrar, as the case may be, may, after giving the parties an opportunity of being heard, pass such order thereon as may be deemed just and proper, and the order so passed shall be final and conclusive. (4) Any order passed by the Registrar in exercise of his revisional powers shall not be further revisable by Government." The amending Ordinance further provided that the amendment shall be deemed to have been made from the date of enforcement of the Ordinance of 1966. 4. It seems that a revision petition was filed under Section 9-A of the Ordinance which was allowed by the Registrar on 10.4.1972 whereby order dated 25.6.1970 passed by the Deputy Registrar, Cooperative Societies, Rawalpindi, was set aside. M/s Pak-Japan Industrial Cotton Corporation which comprised of M/S Nichimen Co. (Pakistan) Ltd, Karachi. Ch. Manzoor Elahi and Sh. Inayat Hussain, were held liable jointly and severally to pay Rs. 3,11,285/- as principal and Rs. 2,04,222/- as interest upto 31-3-1972 to the Bank with future interest till the payment of the entire amount of loan. Petitioner and respondent No. 4 filed Constitution Petition against this order which was dismissed by the impugned judgment. 5. The learned counsel has contended that under Section 9-A the Registrar was empowered to suo mom exercise revisional jurisdiction and not at the behest of'any party. Section 9-A(l) empowers the Government to suo-motu call for and examine the record of any proceedings at any time for satisfying itself as to the legality or propriety of decision or award made by the Registrar. This suo-motu power has been conferred on the Government and no time limit has been fixed for exercise of 'such power. This power can be exercised only when the Government deems it proper to consider the propriety or legality of any decision or award made by the Registrar. Therefore, subsection (1) will not apply to the present case as decision was made by the Deputy Registrar. Subsection (2) empowers the Registrar to call for and examine the record in respect of decision or award made by a Deputy Registrar exercising the powers of the Registrar or by an Assistant Registrar. There is no restriction placed in this subsection that such power can be exercised suo-motu only. It is an ordinary revisional jurisdiction conferred upon the Registrar and in the absence of any restriction as in subsection (1) any party aggrieved by the decision or award made by a Deputy registrar or Assistant Registrar can approach the Registrar and file a revision application to challenge such decision or award. Therefore, the Registrar can act on a petition made by any party. The question whether suo-motu power can be exercised on an application made by a party is not involved in this petition and is kept open. 6. The learned counsel contended that after the order by the Deputy Registrar had been made it was a past and closed transaction an$ revisional jurisdiction could not be exercised in such cases. Ordinance III of 1972 while adding Section 9-A provided that the new section shall be added and shall be deemed always to have been so added. Therefore, restrospective effect has been given to the operation of Section 9-A. from the date when the West Pakistan Cooperative Societies and Cooperative Banks (Repayment of Loans) Ordinance 1966 was promulgated. The amendment was made in the year 1972 and immediately the Registrar on the petition filed, called for the record and passed the order. Therefore, the question of past and closed transaction does not arise. 7. The learned counsel contended that while recording finding adverse to the petitioner and respondents No. 3 and 4 in regard to their liability the Registrar had misread evidence. In this regard reference was made to documents Ex Jl, J3, J5, J7, J8 and 111. A perusal of the order of the Registrar will show that he had taken pains to examine all these documents and many other documents produced in the matter. He had dealt with the question whether the signature denied by Ch, Manzoor Elahi was correct or not and after comparing with the admitted signature came to the conclusion that the documents bear his signatures. On close scrutiny of the documents and examining the contentions raised by the petitioner and respondents No. 3 and 4 he fixed the liability for payment on them. The learned Judges of the High Court were justified in remarking that it was a case of appreciation of evidence and not a case of misreading or nonreading of evidence on record. We therefore refuse to grant leave. (MBC) (Approved for reporting) Petition dismissed.

PLJ 1993 SC 432 PLJ 1993 SC 432 [Appellate Jurisdiction] Present: AJMAL MIAN AND muhammad afzal lone, JJ FEDERATION OF PAKISTAN, through G.M. TELEGRAPH AND TELEPHONE DEPARTMENT, LAHORE-AppeUant versus PROVINCE OF PUNJAB, THROUGH LAND ACQUISITION COLLECTOR, LAHORE, and 2 others-Respondents Civil Appeal No.1171 of 1990, accepted on 30.5.1993 (approved for reporting on 6.6.1993). [On appeal from judgment dated 11.3.1989, of Lahore High Court, passed in Writ Petition No.1228 of 1989.] Acquisition of Land- —Land-Acquisition of—Writ petition challenging validity of Land Acquisition Collector's award-Dismissal of writ petition-Challenge to—Land was required by appellant "amongst others for housing purpose"--Words "amongst others" have reference to requirement of land for purpose of Telephone Exchange, Workshop, Public Call Office, Dispensary and accommodation for emergency staff-Object of utilization of land by Telegraph and Telephone Department is decidedly a public purpose of higher order as compared with one for which land is acquired for use by Board of Revenue Employees Housing Society Ltd., namely construction of housing colony-Held: High Court did not determine respective merits of contentions of parties; failed to assess superiority of one public purpose over others and rejected appellant's contention for simple reason that appellant obtained land in 1979, but did nothing to utilize it till 1989-Appeal accepted. [Pp.436,437&438]A,B&C Ch. Hameeduddin, Advocate, Supreme Court, with Sh. Maqbool Ahmad, Advocate, Supreme Court, instructed by Rana Maqbool Ahmad Qadri, A.O.R. for Appellant. Malik Maqbool Etaki, Advocate General, Punjab , for Respondent No.l. Respondent No. 2, Not represented. Mr. Humid AH Mirza, Advocate, Supreme Court, for Respondent No.3, Dates of hearing: 23 and 28.11.1992 and 5.12.1992. judgment Muhammad Afzal Lone, J.--This appeal by leave to appeal Hied by the Federal Government is directed against the Lahore High Court's order dated 11.3.1989, whereby the writ petition brought by the appellant, questioning the validity of the Land Acquisition Collector's award dated 26.2.1987, was dismissed hi liminc. 2. The dispute- between the parties is confined to acquisition of land measuring 24 kanals, 14 manias, situate in the revenue state of village Dhana Singhwala, falling within the urban area of Lahore . This land together with another fairly vast tract of land was included by the Collector Lahore District in Notification No.JAC/AC-1363 dated 9.9.1982 under Section 4 of the Land Acquisition Act published in the extra-ordinary issue of the Punjab Gazette of 30th September, 1982, for the purposes of construction of residential colony for the Punjab, Board of Revenue Employees Society Ltd., Lahore. The land alongwilh other area was earlier purchased by the Pakistan Telephone and Telegraph Department from the Settlement Department. 3. Section 39 of the Land Acquisition Act intpr alia lays down that in case of acquisition of land for a company, Sections 6 to>37 shall not be put into force without the previous consent of the Commissioner. Under Section 40 such consent cannot be given unless the Commissioner is satisfied, on a report of the Collector under Section 5-A(2) or by an enquiry held under Section 40 by such person, as appointed by the Commissioner: "that swch acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public." It is evident from the record that Assistant Commissioner held an enquiry under Section 40 of -the Land Acquisition Act, and in the course of these proceedings in response to a public notice, inviting objections against acquisition, the Divisional Engineer Dev. P-II, l,ahore, vide his communication dated 6.3.1985 filed objections to the effect that the land was required for building a colony for the employees of the Telephone and Telegraph Department, Later on he wrote another letter dated 9.4.1985 to the Assistant Commissioner; the operative part wrier; of is reproduced below:-- "In continuation of letter No.B/L-8/II/l dated 6.3.1985 wherein the utiii/.ation of land was shown as staff colony for employees It is further added and clarified that the staff accommodation is planned alongwith other tele communication installations and may not be exclusively regarded as colony and the ultimate utilization plan is however given as under:— Khasra No. Area Utilization K- M 571 7- 2 Telephone Exchange Building 527 6- 2 Workshop for Telephone Exchange Equipment 482 3- 14 Telephone Office 560 2- 6 Workshop 529 2- 5 Accommodation for Telephone Exchange Emergency Duty Staff 576 2- 5 Public Call Office and Accommodation for Telephone Office Staff 525 1- 0 Dispensary for Staff T/Area 24 -14 In view of the above, it is requested that the Government interest may kindly be watched in the case Sd/- Divisional Engineer Dcv. P-II, Telegraph and Telephone 11-Egerton Road , Lahore ." The column relating tc area did not form part of the communication dated 9.4.1985 and has been added by us. 4. The Assistant Commissioner in his report dated 17.4.1985 under Section 40, sent to the Commissioner, Lahore Division, Lahore, opined that there was no bar to the acquisition of the land owned by the Government and further expressed the opinion:-- "According to the instructions contained in paragraph No.l of the Standing Order No.28 (Land Acquisition), it is inappropriate to acquire the Land of Pak PWD and T.T. Departments under the Land Acquisition Act, 1894. In the public interest it is proposed that the land belonging to both - departments may be obtained from them through negotiation at higher level, otherwise, B.O.R.'s Housing Scheme is not applicable and feasible." It appears that the suggestion given by the Assistant Commissioner did not weigh with the Commissioner; instead of obtaining the land through negotiation with the Telegraph and Telephone Department authorities, the machinery of law for acquisition of (he land was set into motion. In the first instance Notification under Section 17 of the Act wis issued on 2.2.1986 which was followed by Notification daied 24.2.1986 under Section 6 of the Act. It is on the record that on behalf of the appellant the objections to the acquisition were pressed into service even before the Collector in the- proceedings under Section 9 but of no avail. The Land Acquisition Collector made his award under Section 11 of the Act on 26.2.1987 and the land in dispute was included therein. 4. As already observed, the appellant assailed this award through invocation of wril jurisdiction, but the High Court declined to intervene. Before the learned Single Judge, the utili/ation of the land for telephone exchange purpose, as disclosed in the Telephone Department's letter dated 9.4.1985, was urged, but it did not prevail with him largely for the reason that before the Assistant Commissioner originally the department's stand was that it planned to build a colony for its employees on the disputed land. An objection rested on Standing Order No.28 which had found favour with the Assistant Commissioner, was also rejected, as in the opinion of the learned Single Judge the rule in question was ultra vires of the Land Acquisition Act. 5. In the leave grant order it has been maintained:- "The present case involves a human factor; namely, on the one hand the impugned acquisition was for Employees Housing Society while the land, it has been urged from the petitioner's side, was also to be used by the petitioner if not acquired, amongst others for housing purpose. Public interest in so far as the purposes are concerend really does not clash. It is the question more of accommodation by the main parties to this case, to each others' needs and interests. The proposal by an Assistant Commissioner made in 1985 to the effect that there should be negotiations between the departmental representatives and the representatives of the two Governments concerned, was not only laudibk but a very practicable way out for resolving an unfortunate and complicated issue. We, accordingly, grant leave to appeal to examine further this particular feature of the case." 6. In pursuance of the observation made in the leave grant order the parties were asked to make an effort to resolve their dispute through negotiation, but unfortunately they could (not) come to any agreement. This appeal, therefore, shall have to be decided on meris. There is no doubt that the acquisition of the land for a Housing Scheme formulated by the Board of Revenue Employees Housing Society Limited is a public purpose. By public purpose is meant an object or aim in which the general interest of the community as compared with the interest of an individual is involved, but it can hardly be denied that the object for which the land has been purchased by the Telegraph and Telephone Department from the Settlement authorities is also a public purpose. The learned counsel for the appellant has drawn our attention to the transfer order under which the land in question together with other area was purchased by the department from the Settlement Department and submitted that the land so purchased has to be utilized for construction of a housing colony for the employees of the department, but so far as the appellant's land acquired at the instance of the Housing Society is concerned, it is essenti.ily earmarked for construction of Tele-communication Building, Office and for allied objects mentioned in letter dated 9.4.1985. 7. After going through the record before us we do not feel persuaded to agree with the High Coirt. From its perusal we find that soon after informing the Assistant Commissioner that the land was required for housing colony for the employees of the department, the Divisional Engineer sent him a letter dated 9.4.1985 explaining the purpose for which the land has to be utilized. There is no good ground to cast any doubt on the correctness of the departmental version. It is noticeable from the leave grant order that the land is required by the appellant "amongst others for housing purpose". It is submitted that at the leave grant stage the use of the land for Tele-Communication installations was also urged and though it is not specifically mentioned in the order yet is reflected by expression "amongst others" preceding the words "housing purpose". The submission is that the words "amongst olh{ rs" have reference to the requirement of the land for the purpose of Telephone Exchange Department, Workshop, Public Call Office, Dispensary and accommodation for emergency staff, as disclosed in the letter aforesaid. The contention is well grounded. The High Court was not justified in ignoring the objects for utilization of the land by the Telegraph and Telephone Department stated in their said communication, which decidedly is a public purpose of higher order as compared with the one for which the land is acquired for use by the Board of Revenue Employees Housing Society Ltd., namely, construction of housing colony. The reason being that so far as the latter is concerned only a section of the society would be benefited by the acquisition of the land but its utilization by Telegraph and Telephone Department involves the interest of the public at large. It seems to us that the Assistant Commissioner was conscious of this aspect of the case, who in his report categorically made suggestion that the land be procured through negotiation, otherwise the execution of the housing scheme would be rendered impracticable, to which unfortunately ihc Commissioner did not advert and chose to issue Notification under Section 6 of the Act. 8. Before the High Court it was specifically asserted that the acquired land was to be used by the Telegraph and Telephone Department for higher public purpose than that by the Revenue Department, but in this behalf, the High Court did not determine the respective merits of the contentions of the parties; failed to assess the superiority of one public purpose over the others and rejected the B appellant's contention for the simple reason that the appllant obtained the land in 1979, but did nothing to utu"i7.e it till 1985. We, however, feel that in the absence of evidence of abandonment of purpose for which the land was purchased by the appellant, the High Couit was not justified in brushing aside their plea summarily. 9. Under Section 6, on consideration of a report submitted to the Commissioner under Section 5-A or Section 40 and compliance with other provisions of Part VII of the ACT (which included Sections 39 & 40) if he is satisfied that the land is needed for public purpose or for a company he may make a declaration' to that effect. It is noteworthy that enquiry under Section 40 is factual in nature in which hearing is given to the objectors. It is a channel to place information before the Commissioner for his satisfaction to enable him to have a correct perception of the situation before making a declaration that the land is needed for a public purpose and consequently its acquisition is warrantable, but the satisfaction of the Commissioner should be deliberate and arrived at after due care and proper application of the mind to the facts appearing on the record. It is clear to us that he did not advert to the purpose for which the land was purchased by the Telegraph and Telephone Department highlighted in their letter dated 9.4.1985. Upon the facts of the case and law on the subject, we are of the view that the declaration under Section 6 made by the Commissioner was not warranted as the land was already held by the department for a paramount public purpose. This would rob away the validity of the notification under Section 6, which is a condrtion precedent lor sustenance of the award. These features of the case have escaped notice of the High Court.For all these reasons this appeal is accepted; the impugned judgment is set aside and so also the Land Acquisition Collector's award to the extent of acquisition of the land in dispute. The Board of Revenue, however, shall he at liberty to lake up the matter with the Telegraph and Telephone Department authorities to procure the land through negotiation, mutual adjustment and exchange, if i!s retention by the Society is considered indispensable for proper implementation of the housing scheme. We have no doubt, if such a move is made, it shall be given due weight by the appellant. The parties are left to bear their own costs. (MBC) (Approed for reporting) Appeal accepted.